Employers in the San Francisco Bay Area must now help their employees use alternative transportation under a program approved by the Bay Area Air Quality Management District (BAAQMD) and the Metropolitan Transportation Commission.  The Bay Area Commuter Benefits Program requires employers of 50 or more employees to select one (or more) of four commuter benefits options.  Covered employers must select and implement at least one of the options by September 30, 2014.  Unless it is extended, this pilot program will terminate at the end of 2016.

Who Must Implement the Program?

Any employer, including a public or nonprofit employer, within the (BAAQMD)[1] that has 50 or more full-time employees is subject to the program.  A “full-time employee” is defined as anyone who works at least 20 hours per week and receives a Form W-2 from the employer.  The total number of employees is based on all workers at sites within the Bay Area.  Seasonal and temporary employees working fewer than 120 days per year, as well as “field employees,” are excluded from the definition.  

What Are the Available Options Under the Program? 

Employers covered by the program must register with the BAAQMD (and update the registration annually), develop an acceptable commuter benefits program, designate a commuter benefits coordinator, notify employees of the benefit option chosen by the employer and keep records of program implementation.

The four options from which employers may select are (1) a pre-tax benefit, (2) an employer-provided subsidy, (3) employer-provided transit, or (4) an alternative commuter benefit.  As a pre-tax benefit, an employee may exclude up to $130 a month from their taxable income to pay for mass transit or vanpooling expenses.  Employers can alternatively provide a subsidy of up to $75 a month to cover transit or vanpool costs or provide their own low-cost service, such as a shuttle.  Finally, employers may provide any other alternative as long as it is as effective as the other options in reducing single-occupancy commutes.

What Are the Consequences if a Covered Employer Does Not Comply With the Program?

Employers who do not comply are subject to California’s stringent air pollution laws, which provide for penalties, including monetary fines.  The BAAQMD has the authority to enforce the statute.

For assistance in determining whether the rule applies or in establishing a compliant program, consult with Perkins Coie’s employment attorneys in San Francisco.

[1] The BAAQMD’s jurisdiction includes San Francisco, Alameda, Marin, Napa, Contra Costa, San Mateo and Santa Clara Counties, along with parts of Sonoma and Solano Counties.

© 2014 Perkins Coie LLP