Under the Patient Protection and Affordable Care Act, also known as the Affordable Care Act or Obamacare, most employers are required to provide one of two notices to all employees. Guidance was provided to employers by the US Department of Labor (DOL) in Technical Release No. 2013-02, Guidance on the Notice to Employees of Coverage Options under Fair Labor Standards Act §18B and Updated Model Election Notice under the Consolidated Omnibus Budget Reconciliation Act of 1985.

Employers Required to Provide the Notice

Employers subject to the Fair Labor Standards Act (FLSA) are subject to the notice requirements. The DOL offers an online tool to help employers determine if they are subject to the FLSA. One of the criteria is that employees who are engaged in, or produce goods for, interstate commerce are subject to the FLSA.

Examples of Covered Employees Who Are Engaged in Interstate Commerce

The DOL online tool provides the following examples of employees who are engaged in interstate commerce:

• An employee such as an office or clerical worker who uses a telephone, facsimile machine, the US mail, or a computer E-mail system to communicate with persons in another state.
• An employee who drives or flies to another state.
• An employee who unloads goods which came from an out of state supplier.
• An employee such as a cashier or waitress who uses an electronic device which authorizes a credit card purchase.

Examples of Covered Employees Performing Support Work

The DOL online tool provides the following examples of employees who perform support functions for instrumentalities of interstate commerce that are so closely related to interstate commerce that they are also considered to be engaged in interstate commerce:

• A security worker at an airport.
• A custodian who works for a janitorial contractor which cleans a bus terminal.
• A laborer or mechanic who performs maintenance or repair work on machines used in the production of goods for interstate commerce or improvements to a city street.

Examples Are Not an Exclusive Listing

The above examples are not intended to be an exclusive listing. Other employees who don’t perform these tasks may still be considered to be engaged in interstate commerce.

Contact Your Labor Law Attorney for Further Information

Vision Payroll strongly recommends that employers consult with a qualified labor law attorney to determine if they are subject to the provisions of the FLSA.