Proposed Approach for Applying the “Look-Back” Method When the Section 4980H Measurement Period Changes

by Eversheds Sutherland (US) LLP

The Internal Revenue Service (IRS) recently issued Notice 2014-49 which describes a proposed approach for determining an employee’s full-time or part-time status for purposes of the employer shared responsibility rules under section 4980H of the Internal Revenue Code of 1986, as amended (Code), when: (1) the employee’s job within the controlled group of companies changes, and (2) a look-back methodology is used to determine full-time or part-time status for both the old job and the new job, but different look-back methodologies are used for the old and the new job. The approach proposed in Notice 2014-49 may also be used when an employee’s job is affected by a merger, acquisition or other corporate transaction.


An “applicable large employer” risks incurring penalties under the Patient Protection and Affordable Care Act (PPACA) if it fails to offer full-time employees (working 30 or more hours per week) qualifying health plan coverage. If an employee’s weekly hours vary, an employer may determine if the employee is full-time or part-time by measuring the employee’s hours month by month or during a chosen “look-back” period.

Under the look-back methodology, an employer picks a backward looking “measurement” period, uses a short “administrative” period to calculate the employee’s average hours during the measurement period, and then, based on the average hours worked during the measurement period, designates the employee as full-time or part-time for a prospective “stability” period. Within limits, the employer has flexibility in determining the length of the measurement, administrative and stability periods, and when they begin and end.

The final PPACA regulations under Code section 4980H issued in February 2014 address how to determine full-time or part-time status if an employee moves within the same controlled group of companies from a job category for which the monthly measurement method is used to a job category for which the look-back measurement method is used (and vice-versa). However, the final regulations do not address how the look-back methodology should be applied (1) when an employee transfers to a position within the controlled group of companies for which a different measurement period is used, (2) when the employer changes its look-back measurement methodology, or (3) if there is a change in the method applicable to an employee as a result of a corporate transaction.

The guidance proposed in Notice 2014-49 is necessary because employers have flexibility in designing the look-back methodology they will use and are permitted to make changes from time to time. For example: different employers within the same controlled group of businesses may use different methods of determining full-time and part-time status; hours can be counted in different ways (e.g., by totaling actual hours or estimating hours using various equivalencies based on weeks or months worked); and an employer, whether or not in a controlled group, may choose to apply the look-back period differently for different classes of employees (e.g., salaried vs. hourly, bargained vs. non-bargained, different bargaining units, or employees having principal work places in different states).

Notice 2014-49 proposes methods for addressing these situations and requests comments on its proposed approach.

IRS NOTICE 2014-49

If an employer uses the look-back method for determining the full-time or part-time status of any employees, the new guidance proposes how to apply the look-back methodology when:

  • The employee’s position changes within the controlled group of businesses, and a different look-back methodology is used for employees in the new job category; or
  • The employer elects to change its look-back methodology.

In brief, assuming the employee is not transferring to a new position where he or she is expected to work full-time (in which case the “change in employment status” may require the employee to be treated as full-time immediately):

  • If, at the time of the change, the employee is currently in an administrative period or stability period (i.e., the employee has worked a complete measurement period under the old methodology, either an “initial” measurement period or a “standard” measurement period), then the employee retains his or her full-time or part-time status for the stability period that applied before the change in methodology (i.e., the methodology for the old job), and at the end of that stability period the employee’s status is determined using the new look-back methodology (i.e., the one that applies to the new job); and
  • If, at the time of the change, the employee is not in an administrative or stability period (i.e., the employee has not worked for a complete measurement period under the old methodology), then the employee’s full-time or part-time status is determined using the new look-back methodology (i.e., the one that applies to the new job).

In both situations, when applying the look-back rules under a new methodology (e.g., for the new job), the employer must include in the calculation all of the hours worked by the employee (whether in the old job or new job). In addition, when calculating the hours worked in the old job (or under the old methodology), the employer may count those hours (using actual hours or equivalencies) by applying the hours counting rules that applied to the old job or the new job (or the old or new methodology), as long as all similarly situated employees are treated consistently.

Example 1:

ABC Co. has two divisions: “Widget” and “Services.” For on-going employees, Widget uses an October 15 - October 14 measurement period, a 2½ month administrative period, and a 12-month stability period beginning January 1; while Services uses a July 15 - July 14 measurement period, a 2½ month administrative period, and a 12-month stability period beginning September 1. Employee Sam has been working for Widget for years and has been averaging less than 30 hours per week for the period October 15, 2013 to October 14, 2014; therefore, he is part-time for calendar year 2015. However, for the period July 15, 2014 to July 14, 2015, he averages more than 30 hours per week. On August 15, 2015, Sam transfers to Services.

When Sam transfers to Services he is in Widget’s stability period as a part-time employee, and he may continue to be treated as a part-time employee for Services through the end of Widget’s stability period, December 31, 2015. As of January 1, 2016, Sam’s status is determined under Services’ July 15 - July 14 standard measurement period, during which he was full-time. Thus, Sam will be treated as a full-time employee of Services beginning January 1, 2016 through the end of the then-current stability period, August 31, 2016. Thereafter, Sam’s status will be determined using Services’ standard measurement period.

The same result would apply if Widget and Services originally were not part of the same controlled group of companies, Services purchased Widget on August 15, 2015, and Sam transferred to Services in connection with the sale.

Corporate Transactions: While acknowledging that there may be multiple means of determining the full-time or part-time status of employees acquired in a corporate transaction, Notice 2014-49 explicitly permits the business acquiring a group of employees to determine the full-time or part-time status of the acquired employees by either:

  • Applying the rules described above, as if the employee had transferred to a new job for which a different look-back methodology applies; or
  • Continuing to apply the methodology used for the acquired employees by the prior employer for a transition period. The transition period runs from the date of the corporate transaction through the end of the first stability period of the prior employer that begins after the corporate transaction closes, if the acquirer uses the look-back methodology. However, if the acquirer evaluates the employee’s full-time or part-time status based on hours worked each month, the transition period runs through the last day of the first calendar year that begins after the date of the transaction.

Example 2:

Employee Sally joins Targeted, Inc. as a new variable hour employee on January 1, 2016. The initial measurement period associated with Sally’s position lasts for 12 months, beginning on the date of hire. The standard measurement period also runs from January 1 until December 31, and the stability period runs from the next corresponding January 1 until December 31.

AcquireCo purchases Targeted, Inc. on May 1, 2016, during Sally’s initial measurement period at Targeted. As a result of the transaction, Sally’s employment transfers from Targeted, Inc. to AcquireCo on that date. AcquireCo’s group health plan uses six-month standard measurement and stability periods for Sally’s new position, beginning January 1 and July 1. AcquireCo also uses a six-month initial measurement period for new hires.

Sally’s full-time or part-time status would be determined under the following rules:

  • Under the general rule of Notice 2014-49, since Sally was transferred at a time when she was not in an administrative or stability period, her status would be determined using AcquireCo’s measurement period at the time of the transaction (May 1, 2016), which runs from January 1, 2016 to July 1, 2016, and AcquireCo will need to consider all of the hours Sally worked for Targeted from January 1, 2016 to April 30, 2016, as well as all of her hours for AcquireCo from May 1, 2016 to June 30, 2016. Thereafter, her status will be determined like any other on-going employee of AcquireCo.
  • Alternatively, under the special transition rule described in Notice 2014-49 for transactions, AcquireCo may continue to apply Targeted’s January 1 - December 31 measurement period for a transition period beginning on the May 1, 2016 transaction date and continuing through December 31, 2017. Thus, Sally would not be assigned full-time or part-time status until January 1, 2017, when her status would be based on the hours she worked for Targeted from January 1, 2016 to April 30, 2016, plus the hours she worked for AcquireCo from May 1, 2016 to December 31, 2016. Calendar year 2017 would be a stability period for Sally, and AcquireCo’s methodology would be used to determine her status beginning January 1, 2018.


Employers may rely on Notice 2014-49 until additional guidance is issued, and in any event, at least through the end of 2016. The IRS and Treasury solicited comments on the proposed approach in the notice or other possible approaches for handling changes in connection with corporate transactions and whether additional rules are necessary to preclude employers from, e.g., transferring an employee to another category to delay or avoid classifying the employee as full-time. Comments are to be submitted to the IRS by December 29, 2014.

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.

© Eversheds Sutherland (US) LLP | Attorney Advertising

Written by:

Eversheds Sutherland (US) LLP

Eversheds Sutherland (US) LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at:

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit
  • New Relic - For more information on New Relic cookies, please visit
  • Google Analytics - For more information on Google Analytics cookies, visit To opt-out of being tracked by Google Analytics across all websites visit This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at:

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.