In This Edition

• Congress Expands Federal Whistleblower Protections
• Changes to Head Start Performance Standards
• 403(b) Universal Availability Requirement
• EEOC Guidance for Employees with Mental Health Condition
• Fiduciary Rule Delayed

Congress Expands Federal
Whistleblower Protections

Late last year, Congress indefinitely extended a pilot program to enhance whistleblower protections for employees of federal contractors and grantees. This often-overlooked law has important ramifications for Community Action Agencies, given its broad scope: its protections apply to employees of nearly all federal grantees and contractors. Click here for a summary of the law’s requirements and tips for compliance.

CAPLAW Highlights Changes to Head Start Performance Standards

On September 1, 2016, the U.S. Department of Health and Human Services (HHS) issued the much-anticipated final Head Start Program Performance Standards. The final Performance Standards update the federal regulations governing the practices and policies of Head Start and Early Head Start programs to align with the Head Start Act, and to revise and raise educational standards, as required by the Head Start Act. CAPLAW is publishing a series of articles highlighting important changes to the Performance Standards. The first installment discusses noteworthy

changes to the Program Governance section of the Standards, and addresses issues such as: requirements around creation of advisory committees; the role of the Policy Council, Policy Committee, and Parent Committee in program governance; required training; significant changes to the rules around impasses procedures; and a summary of the governance requirements found in other sections of the Performance Standards.
Read more here.

IRS Resources on the 403(b) Universal Availability Requirement

In response to CAPLAW’s recent webinar series on retirement plan compliance, we received multiple questions about the 403(b) universal availability requirement. Under this rule, if any employee of an employer maintaining a 403(b) retirement plan may participate in that plan, then all of the employer’s employees must be given the opportunity to participate. Limited exceptions apply. To help understand how to comply with this rule, the IRS has published a number of resources:

This factsheet provides a summary of the rule, links to the relevant statute and regulations, and analysis and examples of the exception for some part-time employees;
A short FAQ summarizes the rule and answers questions about how it is applied to certain employees. For example, the FAQ explains the IRS’s position that employees must be given the opportunity to participate in the 403(b) plan immediately after hire, i.e. employers are not allowed to establish a waiting period, such as a new-employee probationary period, during which employees are not allowed to participate;
The 403(b) Plan Fix-It Guide explains how to identify and correct the mistake of not giving all employees of the organization the opportunity to participate in the plan; and
The IRS offers two webinars on universal availability: Understanding the Universal Availability Rules in a 403(b) Retirement Plan and Clarifying the Universal Availability and Other 403(b) Retirement Plan Requirements. (If you experience technical difficulties accessing the webinars, we recommend trying a different web browser).

These IRS resources are intended to help sponsors of 403(b) plans understand the universal availability rule and how to comply with it but do not substitute for legal advice. CAAs with questions about their plans’ compliance should contact an attorney who is knowledgeable about retirement plan requirements to obtain advice regarding any particular issues or problems.

*photo credit: www.aag.com

EEOC Guidance for Employees with Mental Health Conditions

This past December, the federal Equal Employment Opportunity Commission (EEOC) released new guidance that explains how the Americans with Disabilities Act (ADA) protects employees with mental health conditions. While the guidance does not create any new law, it does briefly summarize some important ADA compliance topics such as: how and when an employee may be terminated due to a mental health condition; how an employee may keep mental health-

related information private; and providing mental health-related reasonable accommodations. Although the guidance is written primarily for employees, employers who are subject to the ADA may find the guidance useful in implementing this important and complex law. To learn more, see this newsletter from the law firm Fisher Phillips and read the guidance on the EEOC’s website.

Fiduciary Rule Delayed

Last April, the federal Department of Labor issued its final version of “the Fiduciary Rule,” a regulation that aims to protect retirement plan investors by requiring all who provide retirement investment advice to plan sponsors and participants to abide by a "fiduciary" standard—putting their clients' best interest before their own profits. This rule was slated to be phased in from April 10, 2017 to January 1, 2018. (See CAPLAW’s August 2016 eNews Bulletin for more information about the final rule). The Trump administration, however, has indicated its intention to repeal this yet-to-be-implemented rule, and the federal Department of Labor has temporarily halted enforcement of the Rule and proposed new regulations to repeal it. To learn more, see this legal alert from the law firm Ropes & Gray.

This e-News Bulletin is part of the Community Services Block Grant (CSBG) Legal Training and Technical Assistance (T/TA) Center. It was created by Community Action Program Legal Services, Inc. (CAPLAW) in the performance of the U.S. Department of Health and Human Services, Administration for Children and Families, Office of Community Services Cooperative Agreement – Grant Award Number 90ET0441-03. Any opinion, findings, conclusions, or recommendations expressed in this material are those of the author(s) and do not necessarily reflect the views of the U.S. Department of Health and Human Services, Administration for Children and Families.