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Downsizing Question...

Bookmark and Share Question: We are currently downsizing as part of our company reorganization and are considering redesignating some of our employees as independent contractors. Are there any potential ramifications for making the change?

Answer: It is possible to change a worker's status from employee to independent contractor provided that the worker meets the legal requirements of an independent contractor. Whether a worker is an employee or independent contractor is determined through a series of legal tests established by state and federal courts and agencies. For example, for federal tax purposes the IRS uses common law rules to determine whether a worker is an independent contractor. The common law rules examine various facts regarding the degree of direction and control the employer has over the worker and the amount of independence the worker has in regards to performing the work. The more direction and control an employer exerts over the worker, the more likely the worker is an employee. Conversely, the more independent the worker is, the more likely the worker is an independent contractor. It is important to note that there is no single factor that is determinative. The determination is based upon the totality of the circumstances.

While there are other tests at both the state and federal levels, most of them look at the same factors contained in the common law rules and focus on the amount of direction and control the employer has over the worker. The major difference is how many factors the court or agency looks at and how much weight is given to particular factors. For comparison, consider the factors used in the economic realities test, which is used by federal courts and the U.S. Department of Labor (DOL) to determine whether a worker is an employee or independent contractor under the federal Fair Labor Standards Act (FLSA).

Employee misclassification is one of the top enforcement issues for the U.S. DOL's Wage and Hour Division (WHD). This is because under state and federal laws employees are provided protections and benefits that are not provided to independent contractors, such as minimum wage, overtime, family and medical leave, discrimination and harassment protections, unemployment insurance, workers' compensation, and medical coverage. By misclassifying an employee, the employee is denied access to benefits and protections to which he or she is entitled. In addition, the employer avoids withholding income tax and paying into programs such as Social Security, Medicare, unemployment insurance, and workers' compensation.

While making sure employees are properly classified can be a huge task, the consequences for misclassifying an employee can be devastating. If the WHD/IRS perform an investigation or audit of an employer, they will examine all employees and independent contractors for a three-year period.

The ramifications for an employer can vary depending on whether or not the WHD and the IRS determine the misclassification was unintentional or intentional, or even fraudulent. With respect to the FLSA, penalties include liquidated damages (i.e., double back wages) and attorneys' fees and court costs. In regards to federal taxes, if the misclassification was unintentional, the employer faces at least the following penalties based on the fact that all payments to misclassified independent contractors have been reclassified as wages:
  • $50 for each Form W-2 that the employer failed to file because of classifying workers as an independent contractor.
  • Since the employer failed to withhold income taxes, it faces penalties of 1.5 percent of the wages, plus 40 percent of the FICA taxes (Social Security and Medicare) that were not withheld from the employee, and 100 percent of the matching FICA taxes the employer should have paid. Interest is also accrued on these penalties daily from the date they should have been deposited.
  • A failure to pay taxes penalty equal to 0.5 percent of the unpaid tax liability for each month, up to 25 percent of the total tax liability.
  • $50 for each failure to obtain a Social Security number.
If the IRS suspects fraud or intentional misconduct, it can impose additional fines and penalties. For instance, the employer could be subject to penalties that include 20 percent of all of the wages paid, plus 100 percent of the FICA taxes — both the employee's and employer's share. Criminal penalties of up to $1,000 per misclassified worker and one year in prison can be imposed as well. In addition, the person responsible for withholding taxes could also be held personally liable for any uncollected tax.

Not to be forgotten, employers may also face tax and other penalties under state laws. For example, in California these penalties include repayment of back payroll taxes, subject to interest and a 10 percent penalty on the unpaid taxes. Failure to withhold and pay payroll taxes can also result in a misdemeanor charge, and the employer can be fined up to $1,000 or sentenced to jail for up to one year, or both. Additionally, Cal. Labor Code § 226.8 imposes penalties of up to $25,000 on employers who misclassify employees.

While employers may choose to navigate the various tests on their own, due to the severity of penalties for misclassification, employers are strongly encouraged to seek counsel when uncertain about the status of certain employees.


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Recruitment bonuses can be a powerful tool for growing your workforce. To set an effective price point for employee referral bonuses, consider:

·         The cost of using recruiters (up to 25% of the employee’s first-year salary)

·         The rate of turnover in the position

·         The income generated by the position

·         How strong the need is to find the employee

·         How much your competitors’ referral programs are paying

Now that you have a referral amount in mind:

·         Define the skills, experience, and personality desired on a one-page sheet that employees can use to describe the job opportunity. This reduces the variance in describing the opportunity.

·         On a separate sheet, give them a place to fill in follow up contact information for job prospects.

·         Consider paying the bonus in installments (for example, 1/6 every 30 days). Make it clear that the total award will be paid only if the new employee works the full six months.

·         Some companies include vendors, customers, clients, and others in this process using the same approach. The only caveat here is to watch potential conflicts of interest.

One company that hires predominately customer service reps gives every CSR a stack of business cards so that when they interact with someone who offers good service, they can hand them a card. The back of the card says something to the effect of, “You’ve given me good service today. Our company is always looking for people who can provide good service. If you’re interested, contact us at (123) 456-5678 or go to company.com.” It’s important to provide guidelines for avoiding conflicts of interest. The last thing you want your employees to do is hand those cards out at a client’s office!

Don Phin, Esq. is VP of Strategic Business Solutions at ThinkHR, which helps companies resolve urgent workforce issues, mitigate risk and ensure HR compliance. Phin has more than three decades of experience as an HR expert, published author and speaker, and spent 17 years in employment practices litigation. For more information, visit www.ThinkHR.com.


AGE DISCRIMINATION SUIT - Be Careful About What You Say.

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In a case that illustrates how a supervisor’s ill-advised comments can come back to haunt a company, the U.S. Court of Appeals for the Sixth Circuit recently revived a discrimination case by an older employee who had been laid off.

In Sharp v. Aker Plant Services Group, Inc., the plaintiff accused his employer of age discrimination because it terminated him while retaining a younger worker whom he had trained. His supervisor allegedly told him that the company had a succession plan “where you bring in younger people, train them, so that when the older people leave, you’ll have younger people.” The plaintiff also had a recording on which the supervisor said: “We’re all of the same age and we’re all going to retire; I had the opportunity to bring the next generation in, so that’s what we decided to do.”

A lower court held that these statements expressed only a concern for maximizing the firm’s return on investment by retaining employees who would stay with it longer. The appeals court disagreed, arguing that this concern about employees’ potential longevity with the company could be considered a smoke screen for direct evidence of age bias. What’s more, although the supervisor stated that the younger employee was a better performer, he had written a strong letter of recommendation for the plaintiff.

The moral of the story: Keep a close eye on termination decisions that involve older employees.

Article courtesy of Worklaw® Network firm Shawe Rosenthal (www.shawe.com).


Commuting to and from work

Bookmark and Share A frequent question at the Job Accommodation Network is whether the ADA requires employers to provide accommodations for a disabled employee who has trouble getting to and from work because of his or her condition. A related question is whether it makes any difference if the employee's only disability-related problem is the commute; if once at work, he or she has no problem performing the job.

The answer to the first question is "yes"; employers must consider some accommodations related to commuting problems. The answer to the second question is "no;" it doesn't matter whether the employee is able to perform the job fully without the need for accommodations at work.

According to informal guidance from the ADA Policy Division of the Equal Employment Opportunity Commission, although employers don't have to actually transport an employee with a disability to and from work (unless the employer provides this as a perk of employment), employers might have to provide other accommodations, such as changing an employee's schedule so that he or she can access available transportation, reassigning an employee to a location closer to home when the length of the commute is the problem, or allowing an employee to telecommute.

The underlying reason why employers might have to provide such accommodations is that the employer usually controls employee schedules and work locations; so, when a schedule or work location poses a barrier to an employee with a disability, the employer must consider reasonable accommodation to overcome this problem. As with any accommodation under the ADA, when considering accommodations related to commuting, employers can choose among effective accommodation options and do not have to provide an accommodation that poses an undue hardship.

Linda Carter Batiste, J.D.

The Job Accommodation Network