Guidance for Bay Area Employers: The Commuter Benefits Program

by Weintraub Tobin
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Earlier this year, we advised employers that the Bay Area Commuter Benefits Program (“CBP”) was going into effect, beginning September 30, 2014. (Govt.  Code §65081.)  This post provides additional information on the requirements and implementation.

As a reminder, the CBP is now mandatory for  any public, private, or non-profit entity employing an average of 50 or more full-time employees per week within the geographic boundaries of the Bay Area Air Quality Management District (“Air District”) (covering San Francisco, the peninsula, the East Bay, North Bay, and South Bay counties.  (Coverage map: https://mapsengine.google.com/map/viewer?mid=zEtIldN2taQk.kBcuja_KVQNU.)  The CBP is a pilot program, pursuant to state law, in effect only until January 1, 2017, unless extended before that date.

Which Employees Count under the CBP? For purposes of counting full time, paid employees, the following rules apply:

  • Full time employees are those who, within the previous calendar month, worked an average of 30 hours per week;
  • Seasonal/temporary employees who work less than 120 days per year are excluded; and
  • Employees are persons who perform services for monetary compensation and to whom the employer issues or will issue a W-2.

Which Employees Are Entitled to Benefits? Employers must offer the CBP’s benefit to employees who work at least 20 hours of work within the previous calendar month, and are not seasonal/temporary employees.

How Does an Employer Find its Employer ID? Employers should have received a notice to register by mail in early April 2014, but if you did not, there is a link to request an “employer ID” at https://commuterbenefits.511.org/

When Must a Covered Employer Register? All covered employers should have registered by September 30, 2014 (registration is available online at https://commuterbenefits.511.org/).  If you have not registered, the Air District simply advises that employers do so “as soon as possible.”  As of now, there is no express penalty for noncompliance.

What Are the Options? An employer will need to elect one of the four commuter benefit options (pre-tax commute cost exclusion of up to $130 per month), employer subsidy of the cost of commuting (or $75, whichever is greater), employer-provided transit (i.e. low or no cost vanpool, bus, etc.), or alternative commuter benefit (which must be preapproved by the Air District).

What Must an Employer Do to Comply with the CBP? Once a benefit option is selected, you must formally designate a commuter benefits coordinator. This is the person responsible to oversee compliance with the program rules, and report to the Air District/MTC.  Employers should keep records to document compliance and implementation of your commuter benefits program. These records must be made available to the Air District and/or MTC upon request.

What are the Notice Requirements?  The Air District has formal notice requirements which must be provided at the inception of the program and once a year:

Using appropriate means such as email messages, paper memos, in-house newsletters or bulletins, and/or conventional or electronic bulletin boards, the employer shall:

  • Notify all covered employees that the employer is subject to the requirements of the rule;
  • Inform employees as to which of the commuter benefit options the employer will offer;
  • Provide information as to how a covered employee may apply for and receive the commuter benefit;
  • Provide a point of contact within the organization for further information about the commuter benefit; and
  • Provide commuter benefits information as part of the employee benefits package explained to all newly hired employees.

Must Employees Participate? While covered employers are required to offer at least one commuter benefit (or an approved alternative benefit), an employee is not required to participate in the program.

What about Existing Local Commuter Benefits Ordinances? Note that some jurisdictions in the geographic area covered by the CBP require comparable commuter assistance programs: the City and County of San Francisco, San Francisco International Airport, and the cities of Richmond and Berkeley. These programs apply to a lower number of employees than the CBP, so employers already complying with any of these four local jurisdictions’ programs are likely already satisfying the CBP’s requirements.  These employers, however, must still register for the CBP, and indicate which option or options are currently being offered to employees coved by the CBP.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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