Wage and Hour Wednesday: DOL Withdraws Trump “Independent Contractor” Rule

Our blog for Wage and Hour Wednesday deals with the Biden administration withdrawing the Independent contractor rule set into motion during the last days of the Trump administration.

In the press released issued this morning:

The U.S. Department of Labor today announced the withdrawal – effective May 6 – of the “Independent Contractor Rule,” to protect workers’ rights to the minimum wage and overtime compensation protections of the Fair Labor Standards Act (FLSA). The Department is withdrawing the rule for several reasons, including:

  • The independent contractor rule was in tension with the FLSA’s text and purpose, as well as relevant judicial precedent.
  • The rule’s prioritization of two “core factors” for determining employee status under the FLSA would have undermined the longstanding balancing approach of the economic realities test and court decisions requiring a review of the totality of the circumstances related to the employment relationship.
  • The rule would have narrowed the facts and considerations comprising the analysis whether a worker is an employee or an independent contractor, resulting in workers losing FLSA protections.

Withdrawing the independent contractor rule will help preserve essential workers’ rights. The FLSA includes provisions that require covered employers to pay employees at least the federal minimum wage for every hour they work and overtime compensation at not less than one-and-one-half times their regular rate of pay for every hour over 40 in a workweek. FLSA protections do not apply to independent contractors.

In addition to preserving access to the FLSA’s wage and hour protections, the department anticipates that withdrawing the independent contractor rule will also avoid other disruptive economic effects that would have been harmful to workers had the rule gone into effect.

For more information about the FLSA or other laws enforced by the Wage and Hour Division, visit https://www.dol.gov/agencies/whd, or call toll-free 1-866-4US-WAGE.

 

IRS Gearing Up to Implement Taxpayer First Act

The Internal Revenue Service today announced several key leadership appointments as work continues implementing major provisions of the Taxpayer First Act. These leadership changes are part of a larger effort underway at the IRS to continue work on the Taxpayer First Act, which includes work to re-imagine the agency’s tax administration and work to improve taxpayer service and enforcement.

These appointments include:

  • Douglas O’Donnell will serve as the new IRS Deputy Commissioner, Services and Enforcement. O’Donnell has been the Commissioner of the Large Business and International Division of the IRS (LB&I) since 2015, where he also served as the U.S. Competent Authority.
  • Among other leadership changes, Sunita Lough will be returning to serve as the IRS Commissioner of the Tax Exempt and Government Entities Division (TEGE). Sunita Lough has served as the IRS Deputy Commissioner, Services and Enforcement, since September 2019. She is returning to her prior position as Commissioner of TEGE, a role she previously held from 2014 to 2019.
  • Nikole Flax will take over as Commissioner of LB&I after serving as Deputy Commissioner of the division since 2017. She has held many key roles at the IRS including IRS Chief of Staff and Assistant Deputy Commissioner for Services and Enforcement, among others.
  • Holly Paz replaces Flax as Deputy Commissioner of LB&I. She is leaving her current role at LB&I as the Director of the Pass-Through Entities Practice Area, which supports all of LB&I with S Corporation and Partnership Specialty teams and the Ogden TEFRA Unit. She has held other key roles at the IRS including serving as the Director of Corporate Issues and Credits in LB&I’s Enterprise Activities Practice Area, among others.
  • Edward Killen has been serving as Acting Commissioner of TE/GE and will return to the role of Deputy Commissioner of TE/GE. Prior to joining TEGE, Killen has held several leadership positions including the IRS Chief Privacy Officer and Senior Advisor to the IRS Deputy Commissioner of Operations Support, among others.

 

IRS: What Employers Need to Know About Repayment of Deferred Payroll Taxes

The IRS has provided guidance on the repayment of the deferred employee’s social security.  This guidance was provided in the e-News for Payroll professionals March 26, 2021 newsletter. 

The Background

To give people a needed temporary financial boost, the Coronavirus, Aid, Relief and Economic Security Act allowed employers to defer payment of the employer’s share of Social Security tax. IRS Notice 2020-65 PDF allowed employers to defer withholding and payment of the employee’s Social Security taxes on certain wages paid in calendar year 2020. Employers must pay back these deferred taxes by their applicable dates.

The employee deferral applied to people with less than $4,000 in wages every two weeks, or an equivalent amount for other pay periods. It was optional for most employers, but it was mandatory for federal employees and military service members.

Repayment of the employee’s portion of the deferral started January 1, 2021 and will continue through December 31, 2021. Payments made by January 3, 2022, will be timely because December 31, 2021, is a holiday. The employer should send repayments to the IRS as they collect them. If the employer does not repay the deferred portion on time, penalties and interest will apply to any unpaid balance.

Employees should see their deferred taxes in the withholdings from their pay. They can check with their organization’s payroll office for details on the collection schedule.

How to repay the deferred taxes

Employers can make the deferral payments through the Electronic Federal Tax Payment System or by credit or debit card, money order or with a check. These payments must be separate from other tax payments to ensure they applied to the deferred payroll tax balance. IRS systems won’t recognize the payment if it is with other tax payments or sent as a deposit.

EFTPS will soon have a new option to select deferral payment. The employer selects deferral payment and then changes the date to the applicable tax period for the payment. Employers can visit EFTPS.gov, or call 800-555-4477 or 800-733-4829 for details.

If the employee no longer works for the organization, the employer is responsible for repayment of the entire deferred amount. The employer must collect the employee’s portion using their own recovery methods.

Let the Podcasts Begin

Recently I was asked to do my first podcast ever.  Outgrowth a Slice of Pro Beauty Podcast, a group that caters to beauty salon owners and workers, asked me to come on the podcast to discuss the payroll pitfalls when working in or running a salon.  The discuss is in two parts and covers misclassifying workers and the resulting legal ramifications in addition to a whole range of payroll areas that can cause compliance problems. Though generally geared to the beauty salon business, my discussion would be useful to anyone who needs to worry about compliance issues.

I hope you find it useful and informative.

 

 

Be sure to register for our first payroll lecture/webinar of the year.  The topic is the 2021 Form 941 and is being held on Wednesday, March 24th starting at 10:00 am Pacific.  Click here for more details and to register.  Use coupon code CJYFRQA6 at check out to receive a 10% discount as a Payroll 24/7 BLOG FOLLOWER.  The webinar is pending approval by the APA for 1.5 RCHs.

 

What the IRS Thinks You Need to Know About Repayment of Deferred Payroll Taxes

The IRS published in its e-News for Tax Professionals on March 13th the following guidance on repaying of the employee 2020 deferred social security taxes in 2021.  This update includes the provisions of the American Rescue Plan Act signed by President Biden.

The Coronavirus, Aid, Relief and Economic Security Act allowed employers to defer payment of the employer’s share of Social Security tax. IRS Notice 2020-65 allowed employers to defer withholding and payment of the employee’s Social Security taxes on certain wages paid in calendar year 2020. Employers must pay back these deferred taxes by their applicable dates.

The employee deferral applied to people with less than $4,000 in wages every two weeks, or an equivalent amount for other pay periods. It was optional for most employers, but it was mandatory for federal employees and military service members. Repayment of the employee’s portion of the deferral started Jan. 1, 2021, and will continue through Dec. 31, 2021. Payments made by Jan 3, 2022, will be timely because Dec. 31, 2021, is a holiday. The employer should send repayments to the IRS as they collect them. If the employer does not repay the deferred portion on time, penalties and interest will apply to any unpaid balance.

Employers can make the deferral payments through the Electronic Federal Tax Payment System (EFTPS) or by credit or debit card, money order or with a check. These payments must be separate from other tax payments to ensure they are applied to the deferred payroll tax balance. IRS systems won’t recognize the payment if it is with other tax payments or sent as a deposit. EFTPS will soon have a new option to select deferral payment. The employer selects deferral payment and then changes the date to the applicable tax period for the payment. Employers can visit  EFTPS.gov, or call 800-555-4477 or 800-733-4829 for details.

If the employee no longer works for the organization, the employer is responsible for repayment of the entire deferred amount. The employer must collect the employee’s portion using their own recovery methods.

Join us on March 24, 2021 at 10:00 am Pacific for this information-packed webinar

Be sure to register for our first payroll lecture/webinar of the year.  The topic is the 2021 Form 941 and is being held on Wednesday, March 24th starting at 10:00 am Pacific.  Click here for more details and to register.  Use coupon code CJYFRQA6 at check out to receive a 10% discount as a Payroll 24/7 BLOG FOLLOWER.  The webinar is pending approval by the APA for 1.5 RCHs.

 

2021 Payroll Lecture Series Has Begun

I have schedule my first payroll lecture webinar to kick off the 2021 series.  My first topic is the 2021 Form 941.  The lecture will be held on Wednesday March 24, 2021 starting at 10:00 am Pacific time.  The lecture covers:

  • What’s New for 2021
  • Families First Act: Extension of existing credits into 2021 for Paid Sick Leave and Paid Family Leave
  • CARES Act: Status of  deferring employer’s and employee’s social Security
  • IRS Form 7200: Purpose for the form and how it applies to you in 2021
  • Line by line review of the latest Revised Form 941

Register on my website.  Use coupon code CJYFRQA6 at check out to receive a 10% as one of my blog followers.

The webinar has been submitted to the APA for approval for 1.5 RCHs.

Join us on March 24, 2021 at 10:00 am Pacific for this information-packed webinar

DOL: Change of Administrations…Change of Opinions

The U.S. Department of Labor announced plans on March 11, 2021 to rescind two final rules that would significantly weaken protections afforded to American workers under the Fair Labor Standards Act.

The first Notice of Proposed Rulemaking proposes the withdrawal of the Independent Contractor Final Rule issued by the department on issued on Jan. 7, 2021, for several reasons. They include the following:

  • The rule adopted a new “economic reality” test to determine whether a worker is an employee or an independent contractor under the FLSA.
  • Courts and the department have not used the new economic reality test, and FLSA text or longstanding case law does not support the test.
  • The rule would narrow or minimize other factors considered by courts traditionally; making the economic test less likely to establish that a worker is an employee under the FLSA.

Among its provisions, the FLSA requires covered employers to pay employees at least the federal minimum wage for every hour worked and overtime premium pay of at least one and one-half times their regular rate of pay for every hour worked over 40 in a workweek. An independent contractor has no FLSA protections.

The second Notice of Proposed Rulemaking seeks to rescind a current regulation on joint employer relationships under the Fair Labor Standards Act, published in the Federal Register and which took effect on March 16, 2020. In February 2020, 17 states and the District of Columbia filed a lawsuit in the U.S. District Court for the Southern District of New York against the department, arguing that the Joint Employer Rule violated the Administrative Procedure Act. The court vacated the majority of the Joint Employer Rule on Sept. 8, 2020, stating that the rule was contrary to the FLSA and was “arbitrary and capricious” due to its failure to explain why the department had deviated from all prior guidance or consider the effect of the rule on workers.

The department invites comments from the public on both proposed rules at www.regulations.gov. The comment periods end on April 12, 2021.

Anyone who submits a comment (including duplicate comments) should understand and expect that the comment, including any personal information provided, will become a matter of public record. The division will post comments without change at www.regulations.gov and include any personal information provided. The division posts comments gathered and submitted by a third-party organization as a group, using a single document ID number at the site.

More information about the proposed rules is available at https://www.dol.gov/agencies/whd/flsa/2021-independent-contractor and at https://www.dol.gov/agencies/whd/flsa/2020-joint-employment.

 

Register for my first lecture of 2021.  I am starting with the 2021 Form 941 on Wednesday, March 24th at 10:00 am Pacific.  Use coupon code CJYFRQA6 at checkout to receive a 10% discount.

SUI Update

As of today the following states have released or announced their SUI wage bases for 2021.

 

State Wage Base State Wage Base State Wage Base State Wage Base
AK $43,600 KS $14,000 NM $27,000 WI $14,000
AL $8,000 KY $11,100 NV $33,400 WV $12,000
AR $10,000 LA $7,700 NY $11,800 WY $27,300
AZ $7,000 MA OH $9,000
CA $7,000 MD $8,500 OK $24,000
CO $13,600 ME OR $43,800
CT $15,000 MI PA $10,000
DC $9,000 MN RI $24,600/

$26,100

DE $16,500 MO $11,000 SC $14,000
FL $7,000 MS SD $15,000
GA $9,500 MT $35,300 TN
HI $47,400 NC $26,000 TX $9,000
IA $32,400 ND $38,500 UT $38,900
ID $43,000 NE $9,000/24,000 VA $8,000
IL $12,960 NH VT $14,100
IN $9,500 NJ $36,200 WA $56,500

IRS Advises on Filing new Form 941-X

The latest version of Form 941-X and its instructions are now in the draft stage. Although scheduled to be finalized in late September the IRS has issued some advice concerning using the form. This advice appeared in the e-news for Payroll Professionals issued on August 25 and states:

The newest version of the Form 941-X (to allow for corrections to the new lines added to the Quarter 2 Form 941) is expected in late September. In the meantime, for 2020:

  1. If adjusting Quarter 1 or earlier, you may use the existing Form 941-X.
  2. If adjusting Quarter 2 (or later) and not making any increase or decrease to the employer share of social security tax or to any of the new COVID-related lines that were added to the Quarter 2 Form 941, the IRS strongly recommends not using the existing Form 941-X, but rather waiting for the new Form 941-X revision to be released.
  3. If adjusting Quarter 2 (or later) and making any increase or decrease to the employer share of social security tax, or to any of the new COVID-related lines, do not use the existing Form 941-X; instead, wait for the new Form 941-X revision.
  4. Please do not send a Form 941 with “Amended” (or similar notation) written on the form.

If you have already done either of 3-4 above, wait for correspondence to find out if the IRS was able to process the tax return or had to reject it. Given the backlog of paper forms and correspondence due to COVID-19, the IRS is unable to estimate when correspondence will go out.

 

Making Sense of COVID-19 FAQs Part 1

Since the pandemic of COVID-19 began I have been getting a tremendous amount of questions about the different tax credits and how those tax credits relate to the Form 941. Although I posted quite a few blog items concerning these credits I thought what I might do now is go through the different FAQs that are on the IRS website and take a closer look at specific information the IRS has provided. Over the next several blogs I will pick one or two of the FAQs and discuss them and how they affect payroll and/or the 941 form. I am not going to be covering them in numerical order but rather picking the ones that I think are the most relevant to the questions I have been receiving. I will give the FAQ number and under what topic they can be found, as well as the link if you want more information. One bad thing about the FAQs on this website is if they do jump around quite a bit. You start off at question four and then must wander off to question 44 to get the remainder of the answer. So, what I am going to try to do is put it all in one place. Today’s blog gets us started with our first question.

Under the IRS topic Covid-19-Related Tax Credits: General Information FAQs. FAQ number 4 deals with documentation. The question reads:

What documentation must an eligible employer retain to substantiate eligibility to claim the tax credits?

In this case the question is asking about the tax credits under the paid family leave and paid sick leave along with the allocable qualified health plan expenses and the eligible employer share of Medicare taxes. In answering this question, the IRS is not giving us any specifics when it comes to the type of records that we need to maintain. They simply list the normal records that we would maintain in a payroll department including Form 941. However, they do refer to another FAQ, specifically number 44 under the IRS Topic Covid-19-Related Tax Credits: How To Substantiate Eligibility And Periods Of Time For Which Credits Are Available FAQs. But to truly answer the question we not only need number 44 but also number 45 and number 46 under this topic.

Number 44 reads: what information should an eligible employer received from an employee and maintain to substantiate eligibility for the sick leave our family leave credits? The answer provided is as follows: An Eligible Employer will substantiate eligibility for the sick leave or family leave credits if the employer receives a written request for such leave from the employee in which the employee provides:

  1. The employee’s name
  2. The date or dates for which leave is requested
  3. A statement of the COVID-19 related reason the employee is requesting leave and written support for such reason
  4. A statement that the employee is unable to work, including by means of telework, for such reason.

In the case of a leave request based on a quarantine order or self-quarantine advice, the statement from the employee should include the name of the governmental entity ordering quarantine or the name of the health care professional advising self-quarantine, and, if the person subject to quarantine or advised to self-quarantine is not the employee, that person’s name and relation to the employee.

In the case of a leave request based on a school closing or child care provider unavailability, the statement from the employee should include the name and age of the child (or children) to be cared for, the name of the school that has closed or place of care that is unavailable, and a representation that no other person will be providing care for the child during the period for which the employee is receiving family medical leave and, with respect to the employee’s inability to work or telework because of a need to provide care for a child older than fourteen during daylight hours, a statement that special circumstances exist requiring the employee to provide care.

But that still does not tell us exactly what that documentation should look like. That is addressed in question number 45, which reads: what additional records should an eligible employer maintained to substantiate eligibility for the sick leave or family leave credit? This answer gets down to the actual documentation from the payroll system. The employer would need to create and maintain records that include the documentation to show how the employer determine the amount of qualified second family leave wages paid to employees are eligible for the credit, including records of work, telework and qualified sick leave and qualified family leave. The documentation should also show how the employer determine the amount of qualified health plan expenses that the employer allocated to those wages. This of course is in addition to the completed 941 form and any copies of Form 7200. These records could come from your payroll system directly via a report, or if that is not possible, an Excel spreadsheet.

Finally question number 46 deals with record retention time limits. Covid-19 related records fall under the same category as all other employment tax records. This is basically four years plus current.