Opt-out policies can have disadvantages

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Q.The Massachusetts nonprofit of which I am treasurer has several salaried full-time employees. We have personnel policies that cover health insurance, but no written policy should an employee opt out of our health insurance plan.

One employee has health coverage through a spouse so has not signed up for the health plan. The employee receives a cash payment instead. The amount is based on the type of plan (for example, individual or family) the employee would be eligible for.

If another employee chose to opt out of our health plan, would we be obligated to provide that employee with the same benefit based on the same rationale? Or, could we give the second employee a cash payment but determine it differently?

A. I consulted Matt Hollister of Hollister Insurance Brokerage Inc. who said: "As part of Massachusetts Health Care Reform, new insurance regulations were put in place that prohibit employers from discriminating between full-time employees in the availability or cost of health insurance (with a few exceptions, including the presence of bargaining agreements)." A good resource for more information on the law is www.mahealthconnector.org.

Even though your opt-out payment or bonus is not insurance, it is a better practice to offer all employees of a certain classification comparable benefits. In your situation, this would mean offering all full-time employees an opt-out bonus. Both Hollister and I recommend explaining the opt-out bonus in a written policy, so that other employees on the health plan could also consider this option. You are permitted to have different rules for full-time and part-time employees.

Opt-out bonuses should be designed carefully to avoid potentially costly disadvantages. The first possible problem is that health insurance rates for small companies are based on the average age of the population. If younger employees opt out of the health plan, the rates for the employees remaining in the plan can increase at renewal. Another disadvantage is that opt-out bonuses are taxable, so the employer has to include the added cost of FICA taxes on bonuses.

Even with an opt-out program in place, some employees might find that they can not opt out of your plan to join their spouse's plan if the spouse's employer has a different open-enrollment period.

Possibly the best way to handle employee opt outs while treating your employees equally may be to add a "cafeteria plan" in which all employees can be given a set amount of money toward their available pre-tax and post-tax benefits (e.g., to be used toward health insurance, dependent or healthcare flexible spending account, 401(k), or taken as cash). Cafeteria plans do have somewhat complicated rules and regulations and should only be implemented with an experienced vendor or adviser.

I'm wondering if I should continue working at my current pace and hope they can keep a steady stream of work coming my way, or should I try and slow down? I don't want to be a slower worker, but I also don't want to become a nuisance.

A. You sound like a very competent administrative assistant. Your supervisors are lucky to have you on their team. For your supervisors, this is not a bad problem to have.

I would not recommend slowing down your work. Instead, I would independently look for additional work that perhaps your supervisors have not noticed. Does a filing cabinet need to be reorganized and/or old files archived? Is there an area of your office that could be spruced up and someone needs to "own" it? Is there an upcoming event that you could coordinate and take off a supervisor's plate? Is there a departmental orientation program that would be wonderful to implement but no one has taken it on as a project?

Listen carefully for clues around you. Are colleagues or supervisors saying that there are "limited resources" or "not enough time" to complete certain tasks? These might be good tasks to target. Proactively looking for additional tasks and ways to add value will also make your role more interesting.

I would check with supervisors first before taking over any new project or activity, but I bet if you looked for additional tasks and responsibilities, you could find new projects. You will likely be perceived as an employee who took initiative and provided additional value.

If considered part of their workday, would the employer be in violation of Massachusetts law by not giving a nonworking lunch break? Or, might that be a moot point because both employees are salaried or because both employees chose to work over lunch?

A. The "working lunch" is certainly a more common occurrence now than in years past. Both employers and employees are struggling to be efficient.

In Massachusetts, most employers must allow employees to take a 30-minute meal break if the employee works more than six hours in a day. The meal break does not need to be paid but the employee must be freed from all work-related duties. In your scenario, I don't know how many hours per day the employee has worked. Assuming the employee has worked (or plans to work) more than six hours, the employee is entitled to a 30-minute meal break without any work-related responsibilities.

Additionally, the employer cannot require an employee to remain on the premises. In short, the employee must be able to use this time freely. The law in Massachusetts also specifies that an employee is also allowed to pray during meal breaks.

The law does not prohibit an employee from volunteering to work through the meal break, however, the employee must be compensated for this time. If work is being conducted over a lunch break, then this lunch period does not qualify as the employee's 30-minute meal break.

In Massachusetts, this law applies to most employees who work six or more hours in a single day (whether exempt or nonexempt). There are certain exemptions but most employers are required to follow this law. Employees who are minors (under age 18), employees working in very specific industries (examples, iron and glass industries), and employees working under a collective bargaining agreement are possible exceptions.

In Massachusetts, there seems to be a misconception that employers are required to offer rest breaks or coffee breaks to employees. This is not required by state law. There are several states that require 10-minute breaks after four hours of work, but Massachusetts is not one of them.

The attorney general's office in Massachusetts has a website that may be helpful, too. Visit www.mass.gov/ago and click on Workplace Rights. You can find additional information on vacation, meal breaks, minimum wage, and youth employment.

Patricia Hunt Sinacole is president of First Beacon Group LLC (www.firstbeacongroup.com), a human resources consulting firm in Hopkinton.

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