Do you pay your employees overtime pay? No? Is it because your employees don’t work for you more than 40 hours a week? Maybe your employees are exempt from overtime? Are you sure? Just because they pay their employees a fixed amount each week doesn’t automatically render employees exempt from overtime pay. Join The Emplawyerologist after the jump, for a look at some of the reasons…
Happy (almost) Thanksgiving! We have now left the topic of worker misclassification — well sort of, but not really. We were looking at what happens when a company hires workers and misclassifies them as independent contractors when, really, the law defines them as employees. Assuming you have now properly classified your workers as employees, even a properly classified employee can be misclassified. What??? How can someone who is properly classified be misclassified? Did I really just say that? Could I be suffering from pre-Thanksgiving burnout? Possibly, but bear with me anyway. We are talking about a different type of classification, this one under the Fair Labor Standards Act, and it deals with who has to be paid minimum wage and overtime pay (nonexempt employees), and which employees are exempt from such pay. We will start this week by focusing on nonexempt employees. Follow The Emplawyerologist after the jump to navigate this quagmire….
We have been treading the murky waters of wrongly classifying a worker as an independent contractor, when s/he really is an employee. Last week at The Emplawyerologist, we covered the IRS‘s Voluntary Classification Settlement Program (VCSP). Click here for a review.) We now know that the VCSP has a significant downside that businesses need to evaluate. The IRS does provide another possibility, however. Section 530 of the Revenue Act of 1978 may also provide relief to businesses. What type of relief does it provide, how does a business become eligible, and what, if any, downsides should businesses be aware of? Join me after the jump for some answers!
Over the last two weeks, we have been discussing misclassifying workers as independent contractor when they are really employees. We have touched on the consequences of such actions and the factors that IRS auditors use to determine whether a worker is an employee or an independent contractor. Many employers using independent contractors are rightly concerned about IRS audits. Many have heard that the IRS has “amnesty” and “safe harbor” programs. Is that true? If so, do they provide any possible break for employers who, for whatever reason, may have improperly classified some or all of their workers? Let’s take a closer look after the jump…
Last week, we ventured into the scary territory of worker (mis)classification. (Click here to review). We now know that classifying someone as an independent contractor just so we can avoid paying minimum wage, offering benefits, absorbing administrative costs and complying with laws that often feel onerous may be illegal and may land an employer in more hot water than s/he is seeking to avoid in the first place. How do we know if we have correctly classified our workers? That is this week’s topic, which follows after the jump…
Today’s post, in keeping with many of you observing Hallowe’en today, covers a scary topic for many businesses. Suppose you own a company and you have many people working for you. Some of them you treat as employees. You had them fill out a W-4 on their date of hire and you are sure to make the proper payroll deductions. You offer health insurance, paid time off, a 401k and the like. Now suppose you recently hired a group of workers that you did not wish to put on your payroll or be subject to all the laws and administrative costs that apply if you are their employer; maybe those workers did not want to be on record as your full-time employees either. , You therefore call them independent contractors. You send them a 1099 at the appropriate time and you are done — or so you think . You may have misclassified those workers. So what?, you think. If the workers are happy and I’m happy, what’s the problem, who’s hurt? The problem is that you may be in violation of federal and state laws and the penalties can be steep. Let’s start looking into this topic after the jump…
This Spring, I posted several times on the subject of criminal background checks in the hiring process. Specifically, I posted here about criminal background checks and the Fair Credit Reporting Act (FCRA). We know that employers and Consumer Reporting Agencies (CRA’s) who do not comply with the FCRA could find themselves in trouble with the Consumer Financial Protection Board (CFPB) or defending a class action lawsuit. There is a law that may provide some help for employers running background checks as part of an investigation though. It is called the Fair and Accurate Credit Transactions Act (FACTA) — and I would like here and now to issue numerous apologies for not covering it last Spring when I first wrote about the topic. Well, since I cannot turn back the clock, let’s move forward and talk about FACTA after the jump!
You have heard plenty from me over the last year about legal issues impacting employers. This week we are changing things up a bit. Now, I have talked here, here, here and here about criminal background checks in the hiring process. We have a guest blogger, someone from the trenches, who actually owns and runs a background screening company. Her name is Brandy Bishop and her company is i-Verified. You can connect with Brandy on LinkedIn here . Brandy’s perspective and practical advice follows after the jump… Read more…
The United States Supreme Court in June decided two cases believed to be very “employer-friendly”. I mentioned the first, Vance v. Ball State University 133 S.Ct. 2434 (2013) here in a recent Emplawyerologist post. The other one, University of Texas Southwestern Medical Center v. Nassar 133 S.Ct. 2517 (2013) dealt with the level of proof (specifically the causation standard) required for an employee to be able to bring and sustain a retaliation claim. Since we have focused on workplace retaliation these last few weeks, discussing this case seems a logical way to wrap up this subject for now. The exact question: Need the employee’s claim only show that retaliation was a motivating factor in the adverse action taken against him/her (as all other anti-discrimination provisions in Title VII of the Civil Rights Act of 1964 do) or must s/he show that “but for” retaliatory motive, the employer likely would not have taken the adverse action? The US Supreme Court decided that the employee must meet the more stringent, “but for” standard. How did the US Supreme Court arrive at its decision and what does it mean for employers? More on that after the jump… Read more…
Suppose one of your employees files an EEOC charge or reports some other statutory violation by your company. Then s/he resigns. You are not sorry to see him or her leave. You even fantasize about getting back at him/her. Then one day a prospective employer calls you for a reference on that very same employee. You let loose and tell the reference-seeker exactly what you think of your former employee. It may not be nice, you reason, but it’s true, so it’s not defamation. Since s/he is no longer your employee you do not have to worry about a retaliation claim. Think again! Really? How can that be? The law says employers cannot retaliate against employees. Ex-employees are not employees anymore. So what gives? In fact, a number of anti-retaliation laws do cover retaliatory actions against former employees. Read on after the jump to learn more…
Joe Lustig follows HR and Benefits Issues, so you don't have to. Now listed on the Ohio Employer's Law Blog, a national clearinghouse of the best HR and employment law blogs.
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