Vision Payroll

As employers consider layoffs as one alternative during these tough economic times, the HR Pros at MyHRSupportCenter have chosen this month to review some of the laws which employers must comply with when planning and implementing layoffs. This month’s featured article discusses the Worker Adjustment and Retraining Notification Act (WARN), the Older Workers Benefits Protection Act (OWBPA), the Americans with Disabilities Act (ADA), and the Consolidated Omnibus Budget Reconciliation Act (COBRA). To learn more, sign into MyHRSupportCenter and read this month’s featured article. If you’re not yet signed up or would like a free trial of MyHRSupportCenter, contact Vision Payroll today.

The US Department of Labor (DOL) recently issued Administrator signed Opinion Letter FLSA2008-7. Although Opinion Letters only apply to the exact set of facts and circumstances presented in each case, they are a valuable aid in understanding current interpretations of the Fair Labor Standards Act (FLSA). This Opinion Letter states that a substitute teacher may qualify for the Professional exemption of the FLSA if the substitute teacher’s primary duty is teaching. Generally, the Professional exemption requires a “knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction.” Under the state law at issue, substitute teachers do not need a college degree or teaching certificate if they have a state-issued substitute teaching permit. The DOL concluded that it was not the degree requirements that qualified teachers as learned professionals; indeed the requirements vary widely by state and even school, with no standard minimum qualifications. Since discretion and judgment is required for teaching, substitute teachers whose primary duty is teaching qualify for the exemption. Conversely, substitute teachers whose primary duty is not related to teaching do not qualify for the exemption. State laws may provide rules that are more beneficial to the employee and must be followed. Contact Vision Payroll if you have questions about this Opinion Letter.

The US Department of Labor recently issued Administrator signed Opinion Letter FLSA2008-6. Although Opinion Letters only apply to the exact set of facts and circumstances presented in each case, they are a valuable aid in understanding current interpretations of the Fair Labor Standards Act (FLSA). This Opinion Letter discusses whether a city that employs workers in a Water Treatment Plant may include on-call compensation received in a two-week pay period with other pay received in a two-week pay period for purposes of computing the overtime rate of pay to be applied to that period. An employee is paid $2.50 per hour for on-call time that is not considered hours worked under the FLSA. The employee may work overtime during only one week of two-week period. The city proposed including the on-call compensation with all other compensation received in the two-week pay period and dividing by the number of hours worked in that pay period to arrive at a regular rate of pay. For example, an employee earns $10 per hour, works forty hours in the first week and forty-five hours in the second week of a two-week pay period and also receives $100 of on-call compensation. The city proposed paying overtime based on a regular rate of $11.18 per hour. (40 hours X $10/hour) + (45 hours X $10/hour) + $100 = $950 total compensation. $950/85 hours = $11.18 per hour regular rate of pay for overtime purposes. The overtime premium under this method would be $27.95 or $11.18/hour X 5 hours X0.5 premium. If a one-week pay period were used, a regular rate of $12.22 would be used for the overtime calculation (45 hours X $10/hour) + $100 = $550 total compensation and $550/45 hours = $12.22 per hour. The overtime premium under this method would be $30.55 or $12.22/hour X 5 hours X0.5 premium. The FLSA uses a standard of a single workweek for calculating the regular rate of pay and does not allow averaging over two weeks even if the employee’s pay period is normally two weeks. Since “the specific hours for which on-call pay was earned are identifiable, the payment for on-call time must be attributed to the workweek in which the on-call hours occurred.” Therefore, the city must use the latter method to calculate the employee’s regular rate of pay and may not use a two-week period. State laws may provide rules that are more beneficial to the employee and must be followed. Contact Vision Payroll if you have questions about this Opinion Letter.

Thirty-six delivery men for various Vietnamese restaurants in New York City were awarded more than $4.6 million in back pay and damages in a recent case Ke, et al. v. Saigon Grill, Inc., et al., SDNY, 07cv2329 MHD, 10/21/2008. The court found that the defendants’ testimony was not credible as to hours worked by and wages paid to the plaintiffs. Plaintiffs had testified that they worked hours in excess of forty per week without receiving overtime pay and were not compensated at the minimum wage, both in violation of the Fair Labor Standards Act (FLSA); they stated that unlawful deductions from their pay were made by the defendants as supposed fines for things like late deliveries or failure to complete side work; they claimed entitlement to reimbursement for expenses incurred for bicycles and motorcycles used in the deliveries; they alleged retaliatory terminations for asserting their intention to pursue an FLSA complaint; and they sought additional pay under a New York state law that requires employees whose workday is longer than ten hours to receive “one hour’s pay ‘at the basic minimum hourly wage’”. The court ruled in favor of the plaintiffs on all these arguments and also ruled that the defendants’ failure to post any FLSA notices explaining the provisions of the law and the employees’ rights thereunder resulted in a suspension of the statute of limitations until the plaintiffs received notice of their rights. This equitable tolling doctrine allowed plaintiffs to claim back wages for a period of eight years, not the two or three years ordinarily allowed under the FLSA. Vision Payroll strongly recommends employers consult their labor law attorney to review their minimum wage, overtime, and deduction policies to ensure compliance with all applicable federal and state laws.

The Washington Department of Labor and Industries announced recently that pursuant to Revised Code of Washington §49.46.020, the minimum wage for the state of Washington will increase to $8.55 per hour effective January 1, 2009. The law requires an adjustment to the minimum wage be calculated each year. The adjustment is tied to the change in the federal Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W) for the 12 months ending in August. The 5.9% increase in the CPI-W will result in an increase of $0.48 for 2009. Contact Vision Payroll if you have any questions on the Washington minimum wage increase or visit our Minimum Wage Chart.

This week’s question comes from Larry, a business owner. I own a business in Indiana. I was late making a federal tax deposit due to the storms. Is there anything I can do? Answer: On September 12, 2008, the federal government declared Clark, Crawford, Dearborn, Floyd, Franklin, Gibson, Harrison, Jackson, Jasper, Jefferson, Jennings, Knox, Lake, LaPorte, Lawrence, Martin, Ohio, Orange, Perry, Pike, Porter, Posey, Ripley, Scott, Spencer, St. Joseph, Switzerland, Vanderburgh, Warrick, and Washington counties presidential disaster areas qualifying for individual assistance. Therefore, the IRS will waive the failure to deposit penalties for employment and excise deposits due on or after September 12, 2008 and on or before September 29, 2008 as long as the deposits were made by September 29, 2008. Also, the IRS is postponing until November 12, 2008 certain deadlines for return filing, tax payment and certain other time-sensitive acts otherwise due between September 12, 2008 and November 12, 2008. Contact Vision Payroll if you have been affected by these storms and need details on the postponements.

According to the US Department of Labor, in the week ending November 8, the advance figure for seasonally adjusted initial claims was 516,000, an increase of 32,000 from the previous week’s revised figure of 484,000. The 4-week moving average was 491,000, an increase of 13,250 from the previous week’s revised average of 477,750.

The Federal Unemployment Tax Act (FUTA) is imposed by §3301 of the Internal Revenue Code of 1986 (IRC). The statutory rate of 6.2% was set to revert at the end of 2008 to the original rate of 6.0%. Under §404 of the Emergency Economic Stabilization Act (Public Law 110-343 or the “bailout bill”), the 0.2% surtax has now been extended to the end of 2009. The surtax was originally enacted in 1976 to fund additional payments made through a program that extended unemployment benefits. The loans used to fund the program were retired in 1987, but the surtax continues.

Since IRC §3302 allows most employers a credit against 90% of the tax (not including the surtax) for payments into state unemployment funds, the effective FUTA rate is generally 0.8%. This is calculated by taking the statutory rate of 6.2% and reducing it by the credit of 5.4% (6.0% rate without the surtax times 90%). Employers are not allowed a credit against the surtax. For employees who earn at least the 2009 wage base of $7,000, the FUTA tax liability should be $56. Without the surtax, the tax would have been $42. Contact Vision Payroll if you have any question on FUTA taxes and rates.