Good Fruit Grower

May 1

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Page 20 of 47 Good Fruit Grower MAY 1, 2015 21 track their hours over a measurement period (known as a look-back period) of 3 to 12 months, Sequeira said. Then, if it turns out they have been working less than full-time, they need not be offered coverage during a subsequent stability period of at least six months or the same length of time as the look-back period, if that's longer. If they have been working full-time during the look-back period, they must be offered coverage. If, however, the employer knows when the person is hired that they will be working full-time, they must be offered coverage on the first day of the month after an administrative period of up to 60 days (no later than 90 days) from their date of hire. "The key is your belief or intent regard- ing how many hours they are going to work," Sequeira said. Chris Rivard, a partner with Moss Adams LLP in Yakima, Washington, said growers should try to make a reasonable decision because the government could check their historical records to see how many seasonal workers did not work full-time while in their employment. "In my experience, most seasonal workers are hired to work more than 30 hours a week, which makes it a tough argument to say you don't know whether they're part-time or full-time," he said. "That's my only caution." John Hickey, account executive with the health insurance broker MCM in Seattle, said growers get anxious when they think about how many full-time sea- sonal employees they hire during cherry harvest, for example. "Just because you have 500 W2s, it doesn't mean you have 500 employees who are going to be eligible," he said. Most seasonal workers are probably not going to be still employed by the time the employer is ready to offer coverage, but Hickey said growers should be careful if they rehire workers. If they were gone longer than they were employed the first time, they are considered a new hire. If they were gone a shorter time than they first worked, they are a rehire and full- time workers will qualify for coverage on the first day of the month after they were rehired. For example, if a worker is hired to pick cherries for four weeks, then is gone for five weeks and returns to pick apples, he or she would be considered a new hire. If they were gone for only three weeks, they would be rehired. H-2A workers When it comes to H-2A workers, the grower can't argue that they're not sure how many hours they will work, because the number of hours and period of work are spelled out in the paperwork filed with the U.S. Department of Labor before they arrive, Sequeira said, and it's almost always more than 30 hours a week. "If you have H-2A workers, they're almost certainly going to be considered full-time employees who need to be offered coverage at the end of the admin- istrative period of 90 days from the date they were hired. "The reality of the situation is you're permitted a 90-day administrative period, so unless you are agreeing to sub- sidize coverage and want to start signing them up on day one, the law permits you an administrative period to figure out which options to offer," he explained. "If you take advantage of that full 90 days, it's entirely possible your H-2A worker or other seasonal workers will have started and finished before they sign up for coverage." Rivard stressed that growers need to follow the rules to the letter. If it goes to litigation, that does not favor the employer. "Don't play close to the line," he said. "Most likely these people are going to opt out of your plan, so the risk is low." Sequeira agreed that few seasonal workers are likely to actually qualify or want coverage. "It's not worth the time and effort and accountants' fees to try to game this out and try to exclude folks." • "The federal government has spent more than 50 pages of very small type trying to explain what an employee is." —Leon Sequeira

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