CA Adds Sick Leave Section to Wage Theft Form

After January 1, 2015, employers are required to provide most employees with an employee notice (as required under California Labor Code section 2810.5) that now includes paid sick leave information. The revised employee notice form must be used for employees hired after January 1, 2015. For employees hired prior to January 1, 2015, the employer is required to provide a revised employee notice to each employee if compliance with the new paid sick leave law causes a change in the employer’s sick leave policy within 7 days of the change.

Template of Notice

Independent Contractor vs. Employee Another Round: Florida Jumps in the Ring

Officials from the U.S. Department of Labor and the Florida Department of Revenue today signed a memorandum of understanding with the goal of protecting the rights of employees by preventing their misclassification as independent contractors or other nonemployee statuses. Under the agreement, both agencies will share information and coordinate law enforcement. The MOU represents a new effort on the part of the agencies to work together to protect the rights of employees and level the playing field for responsible employers by reducing the practice of misclassification. The Florida Department of Revenue is the latest state agency to partner with the Labor Department.

Memoranda of understanding with state government agencies arose as part of the DOL’s Misclassification Initiative, with the goal of preventing, detecting and remedying employee misclassification. Alabama, California, Colorado, Connecticut, Hawaii, Illinois, Iowa, Louisiana, Maryland, Massachusetts, Minnesota, Missouri, Montana, New York, Utah and Washington state agencies have signed similar agreements.

Independent Contractor vs Employee–Another Round–Rhode Island

Misclassification of workers as independent contractors instead of employees is a nationwide problem facing not only the IRS but all 50 states.  A recent audit by the nonpartisan National Employment Law Project (NELP) looked at agency audits in 25 states and found that 10 to 30 percent of employers misclassify their employees as independent contractors.  And it could actually be higher than that.  That equates to several million workers nationally being misclassified. This results in billions of lost tax revenue and millions of workers without wage and hour or other protections.  So now the states are starting to take the matter seriously. In my October 16th blog I wrote about Alabama beginning to crack down. Now it is Rhode Island’s turn in the ring. As part of a six-agency task force the Rhode Island Division of Taxation has set up an anonymous telephone tip line to receive allegations of worker misclassification. The chairman of the Joint Task Force on the Underground Economy and Employee Misclassification is the Department of Labor and Training Director, Charles J. Fogarty. The tax fraud tip line is staffed by the Division of Taxation. The tip number is 401.574.TIPS or 401.574.8477.

Paid Sick Leave is on the Move–Up Next Massachusetts

The sick pay movement has another notch on its belt for a resounding win in Massachusetts. 60% of the voters approved the measure known as Question 4 on Tuesday making Massachusetts the third state in the union behind Connecticut and California to mandate sick leave. Employers with 11 or more workers have to provide paid sick leave, those with 10 or less do not have to provide paid sick leave but must let the workers take unpaid time off in the same situations. And it is illegal for companies to punish workers for exercising their rights under the new law.

The details are as follows: Employers must provide their workers with one hour of paid sick leave for every 30 hours they work. It is capped at 40 hours of leave for the year. It is effective July 1, 2015. Workers can use the time when they are ill, injured or need to tend to a medical condition. They may also use it when a spouse, child or parent needs to be cared for. Employees can begin to use their earned sick leave on the 90th day of employment. They can carry over up to 40 hours of unused sick leave in the next calendar year but may not use more than 40 in a calendar year. Employers may require the employee to certify their need for sick time if they use more than 24 consecutively schedule work hours. Employees need to make a good faith effort to give employers advance notification if the need to use the earned sick leave is foreseeable such as doctor appointments.

I have been on my soap box about mandated sick leave for years. Of course I am all for it. But why can’t we do it like other “industrialized nations” and have one federal law that mandates sick leave or just PTO. We are the only country out of 140 leading nations that does not give workers paid sick leave on the national level. Instead we get it either on the state level or even worse on the city level. This is what creates the burden on employers, or as I see it, payroll professionals. Not that I have to track one sick leave law but that I have to track it state by state and city by city.

But those that champion mandatory sick leave (and I am one of them) including labor unions and groups devoted to working women and mothers are on a roll and since they can’t get anything done in Congress they are taking their cause to the “streets” and winning there.

Taking the Time off to Vote

Today is the mid-term elections. And it always puzzles me why we don’t have a better turn-out when it comes to voting in this country. Voting is free, in many places it opens early and stays open late and now we even have early voting as well as absentee ballots. So why doesn’t everyone vote? It is a mystery. But this is a payroll blog not a political one so let’s get on with voting and payroll. By that I mean, what is required of employers when it comes to voting and their employees. Is it mandatory for an employer to allow an employee time off work to vote?

Although most elections are federal in some form or manner there is no federal law that specifies the employer requirements for time off to vote. The federal law protects a person’s right to vote by prohibiting interference with the voting process, including voting, campaigning, or acting as a poll watcher or election official. But actually mandating time off to vote during working hours is another area left up to the individual states. States that have a mandate generally require the employee be given enough time to vote unless there is a certain amount of time available to the employee either before or after the shift to vote. An example of this is for Nebraska which states that the employee must have up to 2 hours unless polls open 2 hours before or after work. This is actually the most common mandate. 15 states require the two hour window. These states include: AK, CO, GA, HI, IL, KS, MD, MA, NE, NM, OK, SD, TX, UT and WA. Six states require a 3 hour window. An example is Arizona which requires up to three hours, unless polls open three hours before or after work. Other states that require the three hour window include IA, MO, TN WI and WV. Two states, AL and WY require only a one hour window and KY and NY have the longest requirements with a four hour window.

But some states are not quite as clear cut on their requirements. For example, NV, mandates “sufficient time” from one to 3 hours depending on the distance from or to the poll. Some states, including AR and CA just state that work hours must be scheduled to allow employees the opportunity to vote. MN requires time necessary to appear at the employee’s polling place, cast a ballot and return to work on the day of the election. MS just requires necessary time to cast a vote. ND encourages employers to provide voting leave when the employee’s regular work schedule conflicts with times polls are open. OH just states “reasonable time”. However many states do not have any provisions concerning voting. These include: CT, DE, DC, FL, ID, IN, LA, ME, MI, MT, NH, NJ, NC, OR, PA, RI and SC. The law in VT permits an employee to be entitled to take an unpaid leave from employment to attend his or her annual town meeting. While VA does not specify a time limit but looks to the starting and ending times of the workday on voting day.

It is important to determine and follow the requirements when it comes to allowing employees time off to vote.

Independent Contractor vs Employee–Another Round

In the never ending battle between classifying an worker as an independent contractor or as an employee, the state of Alabama has weighed into the ring.  Officials of the U.S.  Department of Labor’s Wage and Hour Division and the Alabama Department of Labor have signed a memorandum of understanding (MOU) to protect the rights of employees by preventing their misclassification as something other than an employee–such as an independent contractor.  This MOU represents a new effort on the part of the agencies to work together to protect not only the workers’ rights but those of the employers who follow the regulations but may be undermined economically by employers who do not. This MOU is only the latest in a long string of 15 MOUs between the states and the DOL with the goal of preventing, detecting and remedying employee misclassification.  States that have signed an MOU with the DOL include California, Colorado, Connecticut, Hawaii, Illinois, Iowa, Louisiana, Maryland, Massachusetts, Minnesota, Missouri, Montana, New York, Utah and Washington.  For more information check out the Wage and Hour Division’s webpage on Employee Misclassification as Independent Contractors.

Even the USCIS Has Widgets and Webinars!

It appears everybody is getting into the widget and webinars craze even the USCIS! The U.S. Citizenship and Immigration Services has released two new tools for employers.  The Department has released a downloadable Form I-9 Desktop Widget that allows employers to automatically launch the Form I-9 from their desktop at any time.   The Form I-9 Desktop Widget benefits include:

  • Quick access to the current version of the Form I-9
  • Quick access to learn about E-Verify
  • Quick Access to Form I-9 and E-Verify free webinars schedule

The widget is available on the USCIS website.

The Department is also offering it’s first Form I-9 Webinar on Demand.  Now you can watch the free Form I-9 webinar at any time. Choose the chapters of your choice or watch the entire 22 minute video in one sitting.  You will see how to complete Sections 1, 2 and 3, best practices and much more.  It is a great training tool.

The video is available on the USCIS website

Minimum Wage Is on the Move!

The minimum wage, whether federal or state, is one of those items that is basic to payroll.  Right now it is really on the move and heading upwards! Some of the upward mobility is due to previous legislation kicking in for 2015 while others are leaving it up to the voters in the November elections.  A few of the increases due to previous legislation include Montana going to $8.05 per hour and Connecticut increasing to $9.00 per hour. Both are effective January 1.  New York will increase to $8.75 on December 31, 2014.

Just a reminder at least 11 states tie their minimum wage to the consumer price index including Arizona, Colorado, New Jersey Ohio and Washington.  These states will be announcing their rates for 2015 sometime in October or November.

Still other states are putting the matter to the voters on whether or not to increase the minimum wage.  States voting this November 4th to increase the minimum wage include Alaska, Arkansas, Illinois, Nebraska, and South Dakota.

Payroll is becoming political and payroll professionals need to watch elections closely to ensure compliance.