In December 2016, compliance with the Obama administration and the Department of Labor’s proposed wage minimum required extreme reclassification. (Read our 2016 blog on this proposal here.) The proposal would have raised minimum exemption wage to a jarring $47,476 from the previous $23,660. Push back from businesses combined with a late term lawsuit kept the proposal pending until Trump took office.
This Just In
As of last week, the Department of Labor has proposed an increase straight down the middle of the historic minimum and attempted Obama-era hike. The current proposed salary-level threshold for white-collar exemptions now sits at $35,308. According to the Society of Human Resource Management (SHRM), the proposal, if finalized, could result in the transition of more than one million currently exempt workers to non exempt, as well as many pay increases for employees below the new threshold.
Nonexempt employees (those who do not meet the salary base and do not match FLSA work requirements) must receive a “time and one half” pay rate for any hours worked over forty in a workweek. The FLSA “duties test” defines specific regulations for executive, administrative and professional work that make an employee exempt, in addition to the salary threshold.
While compliance is mandatory if the proposal is finalized, the specific way of reaching compliance is left to employer decisions.
If exempt employees currently make salaries significantly lower than the threshold, reclassifying employees to non-exempt and overtime eligible might make sense.
But, employers can also avoid salary and overtime pay altogether. Hours for newly non-exempt employees may be reduced, part-time or contract workers may be hired to fill gaps, tasks may be re-assigned to other exempt employees, and perks may be dismissed since the exempt/non-exempt distinction is often used to provide benefits.
Employers must then weigh the cost of morale.
Overall, it makes more sense to reclassify to nonexempt if an employee does not work much beyond forty hours. But for employees who often work over 40, it may be less difficult and less expensive to increase salary to the new threshold, rather than paying consistent overtime.
There is still a long way to go before reclassification. Proposals are always small first steps in a lengthy process before finalization.
However, employers do not have to wait for the final rule to review FLSA duty requirements. Jeffrey Ruzal, an attorney with Epstein Becker Green, recommends employers begin auditing their exempt workforces to determine how many might qualify under the criteria of executive, administrative and professional exemptions. Before raging re-classification, it is possible that employees currently or potentially exempt due to salary, may not pass the primary duties tests.
In general, this pending proposal offers valuable time for fixing current errors and planning for the future. We at Servant HR would love to help plan for yours. If you’re our client, we’re already on it. But if you have questions about the specifics of the proposal, or are wondering how a PEO can help manage these crucial details, please don’t hesitate. Contact us today!
A new National Labor Relations Board (NLRB) decision has drawn a blurrier line between employers and independent contractors. Returning to pre-Obama-era policies, the NLRB is now more likely to acknowledge independent contractor relationships.
A wide array of federal, state and local laws govern the relationship between employers and their employees. But often these laws do not apply to those classified as independent contractors.
The distinction between the two is critical, but hazy, as each law has a slightly different way of discerning independent contractors from employees. Courts and agencies add complication as well through differing interpretations of those laws, along with frequently changing standards according to appointed political party.
According to Ryan Funk of Faegre Baker Daniels, the new NLRB decision returns to how it viewed independent contractors before Obama-era restrictions. Funk writes, “The main difference between the new test and the Obama-era one is how the agency looks at whether workers have ‘entrepreneurial opportunity.’”
Action vs. Opportunity
The Obama-era decision gave weight only to actual entrepreneurial activity (and even then, only when looking at just one part of a multi-factor test.) This narrow view makes the chance of meeting criteria significantly slim.
The new NLRB decision re-establishes the value of entrepreneurial activity. The principle of “opportunity for entrepreneurial activity” is used to evaluate the overall effect of each of the ten factors in a common-law analysis of an independent contractor relationship.
The decision is employer friendly, as it frees up employers to classify independent contractors and drop the host of governing laws.
Boiling It Down
While employers are freed up through the new decision, the line is still blurry. Those looking for a clear distinction between employee and independent contractor are in for a letdown. According to Funk, “Any legal test with ten factors is bound to boil down to a case-by-case approach.”
Even tests and their factors can vary case-by-case. Over the last thirty years the IRS has used an old revenue ruling twenty-point test, the tax court has used a seven-point test, and the IRS has espoused a three-pronged “control test.” Confusion is certainly understandable.
Therefore, independent contractor relationships should be re-analyzed in light of the new NLRB approach. Based on potential IRS involvement, it’s also important to note that the NLRB is just one voice in a crowd of agencies, so employers should stay up to date as independent contractor tests continue to evolve.
A W-2 tax form shows the amount of income and amount of taxes withheld from your paycheck for the year and is used to file your federal and state taxes.
The IRS requires W-2’s be mailed by employers and postmarked by January 31st. For us at Servant HR, that means our annual W-2 envelope stuffing (pizza party) happens in late January to ensure all forms reach our employees on time. Along with many other employers, we also provide access to W-2’s online.
Form W-2 is used by corporations and small businesses to report taxable income to workers. W-2 forms are divided into state and federal sections, since employees must file taxes on both levels. The W-2 also includes social security and government health care withholdings.
For employees this means a few things:
1. You are required to report all wages you earned from your job(s) during the year on your tax return. You should receive and complete a W-2 from every employer that paid you at least $600 during the year. For freelancers and contract workers, a 1099 form is used instead.
2. Every W-2 form contains the same information, regardless of format. Lettered boxes are for identifying information. Numbered boxes are for financial information. For a more detailed description of requirements for each box, read here.
3. While it can be tempting to get a head start on tax season, never use a final pay stub in place of a W-2 when filing your taxes. Reported earnings on your last pay stub may differ from the reported earnings on your W-2. This can be for a variety of reasons, such as participation in pre-tax deduction health insurance, participation in a company sponsored retirement plan, or the earnings on your pay stub may include non-taxable income items.
5. If your employer makes an error on your W-2 (i.e. leaves out a decimal or spells your name wrong) point out the mistake immediately and ask for a corrected W-2. This could mean you’ll be in a bit of a time crunch, so you may have to estimate your earnings and withholdings.
Keep your eyes open for W-2’s in your mailbox and feel free to reach out if you have any questions!
And if you’re interested in spending less time on tax stuff, HR, payroll, benefits and risk management and more time on your actual business, we’re here for you. It’s a new year, but we’re for our same mission: creating freedom to focus.
When it comes to legal situations around social media and the workplace, the best defense is a good offense. You may not be asking these exact questions today, but someday you might. Keep reading to learn how to avoid legal traps as an employer, and how to formulate a stronger social media policy as an HR professional.
Q: “My employee is making comments about me on his/her personal Facebook account. What can I do?”
A: Perhaps nothing has emboldened people more than the rise of social media. Comments one wouldn’t dare make in person can now be expressed quickly and frequently behind the perceived safety of the internet.
But as inappropriate or insulting as a post may be, employers do not always have the right to take action against an employee for social media behavior. The National Labor Relations Act enforces the right of employees to engage in “protected concerted activity.” This law allows employees, with or without a union, to act together to improve their pay and working conditions.
Q: “What exactly qualifies as protected concerted activity?”
A: According to the National Labor Relations Board, an employee simply griping about their job is not concerted activity. Whatever an employee says or posts on social media must have “some relation to group action, or seek to initiate, induce or prepare for group action or bring a group complaint to the attention of management.”
However, the NLRB decides what actions deserve protection, and because every situation is different, the law is intentionally vague. Sometimes comments made on social media are interpreted as protected concerted activity because they are supported by other coworkers or simply directed at management.
In one case, an employee of a New York catering company was fired for profane Facebook comments directed at his boss and his boss’s family. Still, the NLRB found this employee protected, since the comments were made during a work break, expressed the employee’s concern about management and ended with an all caps call to join the union. The NLRB ordered reinstatement and back pay for the employee.
Less extreme examples of concerted activity include talking with coworkers about wages and benefits, circulating a petition for better hours, participating in refusal to work in unsafe conditions or joining with coworkers to address issues directly with an employer, government agency or media outlet.
The law does not protect spreading maliciously false information, or bashing an employer’s products or services without linking back to a labor controversy. However, the still-vague terms have caught many employers in legal traps.
Q: “So employers can never terminate employees for online behavior?”
A: Not exactly. Off duty conduct laws vary state to state, but employers do have the right to regulate online activity. For example, an employer can discipline employees for online behavior during work hours. However, they must be consistent in enforcing this policy. Discipline must be enforced for all online activity during work hours, not just when negative comments about the company are made.
Employers should intervene when an employee acts disloyally online as well. Complaining about a manager or pay rate on Twitter isn’t considered disloyal, but if an employee claims online that the hospital where they work is unsafe, this is considered disloyal. However, if employees address legitimate safety concerns with an employer or government agency, this activity is protected.
Q: “What other ways can I prevent legal situations around social media in the workplace?”
A: Employers must welcome feedback. Many attacks on social media happen out of pent up frustration. If frustration can be expressed early on when everyone is still rational, the extreme cases can be avoided.
Consistent communication about social media policy is also essential. Along with routine education and training, it is important for company handbooks to have compliant social media policy in order for interceding action to take place fairly and consistently. Any employer action in response to employee behavior on social media must be in line with previous action and easily traceable to a clear handbook policy.
U.S. companies are fighting hard in the war for loyal talent. Their strategy?
Being really, really nice.
Salary makes up a smaller part of compensation than it used to, and lifestyle benefits are filling in the gap. According to a Bank of America report, asurvey of 2,000 employees found that 88% would consider lower-paying jobs to get better perks. Paid time off, onsite fitness centers, casual dress, catered meals and a constant flow of free coffee are all approaching standard as companies work to attract and retain their people.
But amid the deluxe whirlwind of benefits, the saying holds true—no good deed goes unpunished.
In 2003, New York-based Estee Lauder, one of the world’s leading manufacturers of skin care, makeup, fragrance and hair products, implemented an exceptionally generousparental leave policy. In addition to the 12 weeks of unpaid leave required by law, “primary caregivers” were offered 6 weeks of paid leave specifically for “child bonding,” along with flexible return-to-work benefits. “Secondary caregivers” were offered two weeks of paid leave.
The policy is certainly warmhearted on paper. However, in 2017, amale stock worker at a Maryland store, requested six weeks of child bonding leave as the primary caregiver and was denied. He was granted two weeks, as the cosmetic company claimed the “primary caregiver” designation was intended only for mothers and those in “surrogacy situations.”
On August 30, 2017, the Equal Employment Opportunity Commission filed alawsuit against Estee Lauder, stating the additional parental leave policy discriminated against male employees. TheEEOC claimed the practice of allowing women six weeks and men only two weeks, violated theCivil Rights Act of 1964, outlawing discrimination based on race, color, religion, sex and national origin. The policy also was found in conflict with theEqual Pay Act of 1963—outlawing wage disparity based on sex.
Estee Lauder paid a$1.1 million settlement to the class of 210 male employees who received two weeks of paid leave, as compared to the six weeks offered to new mothers. Sex-neutral criteria was used to revise return-to-work policy, ensuring equal benefits for both mothers and fathers. Benefits were applied retroactively to all employees who experienced birth, adoption or foster placement since the beginning of 2018, and training on sex discrimination was mandated by court decree and monitored by the EEOC.
A weighty consequence for such a well-meaning idea. Fortunately for us, we can learn a few things from a distance.
“Parental leave policies should not reflect presumptions or stereotypes about gender roles,” Philadelphia District Office AttorneyThomas Rethage said. “Mothers and fathers should be treated equally.”
This equal treatment applies not only to parental leave, but to all benefits offered beyond what is required by law.
With the rising corporate trend of providing extended parental leave and other lifestyle benefits, companies must ensure treatment consistent with the prohibition of discrimination based on sex. Sincere, routine attention to policy and practices is necessary in catching unwritten stereotypes and protecting against disparate treatment.
Kindness can quickly turn unkind if not shown equally. Fair company values must match the way a company actually operates; otherwise, generous perks are an expensive and empty investment.
Last night, a federal district court in Texas granted a preliminary injunction that temporarily blocks the U.S. Department of Labor from implementing and enforcing its recently revised regulations on the white collar exemptions to the Fair Labor Standards Act (FLSA).
As you know, the overtime rule was scheduled to take effect Dec. 1 and would have raised the salary threshold from $23,660 to $47,476.
Employers should note that this is only a temporary injunction, not a permanent one. The injunction simply prevents the regulations from going into effect on December 1. There will be a decision issued at a later date on the actual merits of the case, so changes in the FLSA salary threshold for exemption may be back. However, the judge wouldn’t have granted the preliminary injunction unless, among other things, he thought the states showed a substantial likelihood of succeeding on their claims.
What may be likely is the change will eventually go through – but maybe with a lower number or a small business limitation or exemption created by the Trump Administration and the new Congress.
As Servant HR has worked through the ramifications with many of you, some of you did make some decisions. If your decisions included salary increases to employees in order to maintain their exempt status and HAVE BEEN COMMUNICATED, you may wish to leave that in place as it would be difficult to take that back. We cannot assume that the overtime rule will be permanently barred.
However, if there are exempt employees who were going to be reclassified to nonexempt that have not been or wage increases had not been promised yet, you may want to postpone those decisions and give the litigation a chance to play out.
Servant HR will continue to advise you as implementation becomes more clear.
While we have already reached out to many of you, if you have specific questions about your situation or wish to undo something you already have communicated to us, please contact us directly.