CA Adopts ABC Test for Independent Contractors

On Monday, April 30, the California Supreme Court issued a landmark [Dynamex Operations West v. Superior Ct., Cal. Sup. Ct., Dkt. No. S222732, 4/30/18] decision basically stating that the “ABC Test” is to be used when determining whether a worker is an employee or independent contractor for purposes of California wage orders. Previous to this latest decision the court case of S.G. Borello & Sons, Inc. v. Department of Industrial Relations, Cal. Sup. Ct., 769 P.2d 399, 3/23/89) was used to determine employee status. In that case the principal test of an employment relationship was whether the person to whom services were rendered has the right to control the manner and means of accomplishing the result desired. Under Dynamex, the Court embraced a standard that presumes all workers are employees instead of contractors and places the burden on classifying an independent contractor under the ABC test.

For a detailed analysis of this case and how you might have to adjust your hiring decisions, I will refer you to the Labor & Employment Law Blog posted by Timothy Kim for the law firm of Sheppard Mullin.

FLSA Video Training Has Arrived at DOL/WHD

The Wage and Hour Division (WHD) of the U.S. Department of Labor (DOL) is launching a new series of brief, plain-language videos to help employers understand their legal obligations when it comes to calculating overtime etc.  According the the WHD website these videos “strip away the legalese and provide employers with basic information…”  The topics provided so far are:

  • Coverage: Does the Fair Labor Standards Act (FLSA) apply to my business?
  • Minimum Wage: What minimum wage requirements apply to my business?
  • Deductions: Can I charge my employees for uniforms or other business expenses?
  • Hours Worked: Do I have to Pay for that time?
  • Overtime: When do I owe overtime compensation and how do I pay it correctly?

The videos are very well done and cover the rules quite nicely.  For example the overtime video does go into all the calculations needed for regular rate of pay.  They last an average of seven or eight minutes each. If you are looking for a good basic training on these topics listed check out the videos from WHD.

WHD Launches PAID Program

Paid Logo

The Wage and Hour Division (WHD) of the U.S. Department of Labor has launched a new nationwide pilot program, the Payroll Audit Independent Determination (PAID) program. According to the WHD, PAID facilitates resolution of potential overtime and minimum wage violations under the Fair Labor Standards Act (FLSA). The program’s primary objectives are to resolve such claims expeditiously and without litigation, to improve employers’ compliance with overtime and minimum wage obligations, and to ensure that more employees receive the back wages they are owed—faster.

Under the PAID program, employers are encouraged to conduct audits and, if they discover overtime or minimum wage violations, to self-report those violations. Employers may then work in good faith with WHD to correct their mistakes and to quickly provide 100% of the back wages due to their affected employees.

WHD is implementing this self-audit pilot program nationwide for approximately six months. At the end of the pilot period, WHD will evaluate the effectiveness of the pilot program, potential modifications to the program, and whether to make the program permanent.

However there are potential pitfalls to the new program.  The Blog Wage & Hour Insights, which I feature quite often in my blogs, has an excellent post by Staci Ketay Rotman, Bill Pokorny and Erin Fowler on this very subject that I encourage you to read to get a better understanding of this new program.

DOL Issues New Opinion Letters Including Lump Sums

The Federal Department of Labor (DOL) has been issuing a flurry of opinion letters recently.   But even more  amazing, is that one of the opinion letters actually deals with a subject long been a thorn in payroll’s side and one that some of us have waited years for a ruling.  The basic problem is whether or not lump sum payments such as bonuses are the same as normal wages under the law when it comes to withholding for garnishments.  You see many of the states do not think that lump sum payments fall under the Consumer Credit Protection Act or CCPA.  This is the Act, written in 1970, that sets the limits for what can be deducted from an employee’s pay for such garnishments as child support and creditor garnishments.  The DOL is actually in charge of enforcing the Act, but has always been unclear on their position on whether or not lump sum payments are covered under the Act.  This is especially true for child support, as employers may actually be required to report the pending lump sum payment and wait for instructions on withholding, usually for back child support owed to the state.  For example, according the the Office of Child Support Enforcement’s matrix on states and lump sums, Alabama requires 100% of all lump sums.  California states that it is subject to 50% unless the lump sum payment does “not involve earnings”. while Indiana follows the CCPA, So we have tried to look to the DOL to give a definition ruling on this and low and behold, they finally have.

In opinion letter CCPA2018-1NA the DOL has answered numerous questions on what constitutes earnings by discussing 18 different specific examples of common types of lump sum payments that an employer may issue to an employee.  These include commissions, discretionary and non discretionary bonuses, profit sharing, production bonuses, sign-on bonuses, relocation incentive payments and safety awards.

ALEC Wins Another State Over!

The American Legislative Exchange Council, or as it is commonly known ALEC, according to their website, is “America’s largest nonpartisan, voluntary membership organization of state legislatures dedicated to the principles of limited government”.  It’s current legislative agenda is to try to stop increases in the minimum wage and the mandatory sick leave movement as it sees it as having a negative effect on workers.  But in order to keep the minimum wage low or as ALEC describes it; “Maximizing the freedom of businesses and employees to negotiate their own wages” they not only have to convince state legislatures not to raise the minimum wage or provide mandated sick leave, but have to convince all local governments as well.  This is a tough job as there are thousands of local entities such as cities and counties that could decide to raise the minimum wage or enforce mandatory sick leave.  So ALEC takes the approach to tackle this from the head down by convincing state legislatures that they need to pass laws that prohibit any local entity from passing any type of minimum wage or benefit increase that does not equal the state level.  At this task they are making headway.  The latest state to buy into ALEC and bar local governments from passing a minimum wage or benefits ordinance is Wisconsin.

New legislation, A748,  prohibits counties, cities, and towns from enacting ordinances that: (1) establish or mandate local hour and overtime requirements, including scheduling employee work hours or shifts; and (2) require employers to provide employment benefits, including a retirement, pension, profit sharing, insurance, or leave benefit. The legislation does allow prospective employers to solicit salary information from previous employers and preempts counties, cities, and towns from prohibiting such solicitation.  The bill is effective as of March 30, 2018.

New Opinion Letter from DOL–NO Pay for FMLA Breaks

The Department of Labor is once again issuing opinion letters.  A flurry of letters were released on April 12th.  One letter addressed the issue of compensating for breaks that are covered under the Family and Medical Leave Act.  The Wage and Hour Insights blog authored by Staci Ketay Rotman and Bill Pokorny with FranczekRadelet covered this topic quite well so I decided to share it with my blog followers.  I hope you find it useful and insightful.

 

 

 

Show Down in Texas Over Sick Leave Looming

After Midnight, On February 16th, the Austin, TX city Council approved an ordinance establishing a paid sick leave requirement.  This requirement applies to all private employers located within the City of Austin.  The Mayor is expected to sign the ordinance.  This will have Austin joining the growing lists of cities and states requiring mandatory sick leave.  But before the City Clerk has even had the chance to verify the approved language and post the finalized ordinance, the state legislature began rumblings that they will take steps to curtail the Austin ordinance in its next session.

The Texas Tribune is reporting that just hours after the bill was passed state Rep. Paul Workman, R-Austin sounded off against the bill, saying the ordinance is “declaring war” on small private businesses.  According to Workman, “It’s not the role of the government to mandate for employers to do this”.   This again is going to come to a show-down between local control of the cities versus control in the state capital.  Something that organizations like the American Legislative Exchange Council (ALEC) have made good use out of to curtail the sick leave movement. We can only stay tuned to see how the show-down plays out in the state legislature.

FBI Warns of Another Phishing Scam Against Employees

The FBI is now warning employers of a possible phishing scam taking place.  This one targets the employees themselves. It focuses on companies that use self-service platforms where employees can view their pay, get duplicates of W-2s and update direct deposit information.  The fraudsters are impersonating the employer’s human resources department and asking employees to update or confirm their personal information via a fake website.  The employee receives a fake email that asks the employee to click on the link provided to log into his self-service account.  The email asks the employee to logon to view a private email from HR, to view changes that have been made to their account, or to confirm that the account is still active.

By clicking on the link and entering their self-service credentials, the employee is actually giving their logon information to the fraudster. The fraudster than can go into the self-service account himself and access all of the information including W-2 and pay stub info.  He can also change the direct deposit information. In order to prevent the victim from from knowing what is going on, the fraudster will also change the email address that the self-service platform uses to send alerts when changes are made.

Payroll and human resources professionals need to be on the lookout for this type of email.  With the new tax bill causing new tax withholding decisions, many employees are making good use of these types of self-service portals.  This will be especially true when the new Form W-4 is issued by the IRS.  Employees will want to make sure they have the proper withholding under the new tax tables.  And it would not be “unusual” for payroll or HR to send out emails during this time-frame.

It is also imperative to practice what the FBI calls “good email hygiene”.  Train your employees to watch for phishing attacks and to also check the actual email address rather than just looking at the display name.  Both these items can be crucial to seeing the attack early, before the damage is done.

The Bad Guys Are Phishing Again!

It appears the bad guys are after our payroll information again.  The IRS, and state tax agencies in Michigan, Colorado, Maryland and Rhode Island are urging all payroll personnel to be wary and to educate themselves about a Form W-2 phishing scam that made victims of hundreds of organizations and thousands of employees in 2017.  I blogged about this last year but it bears repeating with the new W-2 submission deadline looming. Here’s how the scam works: cyber criminals do their homework, identifying chief operating officers, school executives or others in positions of authority. Using a technique known as business email compromise (BEC) or business email spoofing (BES), fraudsters posing as executives send emails to payroll personnel requesting copies of Forms W-2 for all employees. The bad guys are using the information to file fraudulent tax returns, or they are posted for sale on the Dark Net.

The initial email may be a friendly, “hi, are you working today” exchange before the fraudster asked for all W-2 information. In several reported cases, after the fraudsters acquired the workforce information, they immediately follow up that request with a wire transfer. The IRS is hoping that by alerting employers and payroll professionals now it can limit the success of this scam in 2018. They have also created a new process by which employers should report the scams. There are steps the IRS can take to protect employees, but only if the agency is notified immediately by the employers about the theft.

The IRS is also suggesting that employers consider creating a policy to limit the number of employees who have the authority to handle Form W-2 requests and that they require additional verification procedures to validate the actual request before emailing sensitive data such as an employee’s Form W-2.

The IRS has established a special email notification address specifically for employers to report Form W-2 data thefts. Here’s how the Form W-2 scam victims can notify the IRS:

  • Email dataloss@irs.gov to notify the IRS of a Form W-2 data loss and provide contact information as listed below
  • In the subject line, type “W-2 Data Loss” so that the email can be routed properly. Do not attach any employee personal identifiable information data.
  • Include the following:
    • business name
    • business employer identification number (EIN) that is associated with the data loss
    • contact name
    • contact phone number
    • summary of how the data loss occurred
    • volume of employees impacted by the data loss

Businesses and payroll professionals that only receive a suspect email but do not fall victim to the scam should send the full email headers to phishing@irs.gov and use “W-2 Scam” in the subject line. But payroll professionals as well as finance departments should be alert to any unusual request for employee data. Cyber criminals and their scams are constantly evolving.

Jane Fonda is Not Wrong on Tip Regulations

As some of you may have seen on Facebook, a new video with Jane Fonda has been making the rounds. It concerns the latest Department of Labor proposed rules concerning employer treatment of tips.  Leaving the politics of Jane Fonda aside this is an important issue that needs to be understood.  A great source to understand this issue is the latest post from Wage & Hour Insights written by Bill Pokomy on December 8th.  I highly recommend you review his analysis of the proposed rule.