Vision Payroll

Employers must know how to provide reasonable accommodations under the federal Americans with Disabilities Act (ADA), the ADA Amendments Act of 2008 (ADAAA), and state laws they may be even more protective of workers’ rights. What are the recent changes in how statutory terms such as mitigating measures, major life activities, and the regarded as determination are interpreted? How has the focus shifted from a disability inquiry to an interactive process? What should this interactive process include? What five things do employers need to do right now?

Learn the answers to these questions and more in this month’s HRCast, a recording provided by our team of HR Pros and available exclusively on MyHRSupportCenter. Visit MyHRSupportCenter regularly not only for our HRCasts, but also to get late-breaking compliance alerts, best practices to implement, and HR tools to use every day. 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 FLSA2008-15. 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 reviews a plan by a fire protection district to provide monthly stipends to its volunteers. Apparently, the plan provides for the following stipends for volunteers who perform twenty-four or more hours of service per month:

Volunteers cannot receive compensation, but may receive a combination of “expenses, reasonable benefits, or a nominal fee.” Generally, the DOL finds that a fee is nominal “as long as it does not exceed 20% of the amount that otherwise would be required to hire a permanent employee for the same services.” Since the district did not provide the DOL with market data to perform the 20% test, the DOL was unable to make the determination whether or not the fee was nominal. The district itself could make that determination, however, upon gathering the appropriate economic data.

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 (DOL) recently issued Administrator signed Opinion Letter FLSA2008-14. 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 examines whether under the FLSA paid firefighters may also volunteer their services for the private, nonprofit volunteer fire department (VFD) for which they work. According to the DOL, the FLSA “permits public sector employees to volunteer their services to their employing public agency, assuming they provide their services for civic, charitable, or humanitarian reasons and there is no coercion or undue pressure on the employee, so long as they do not volunteer to provide the same type of services for which they are employed.” Although paid office employees of the VFD may volunteer as firefighters during their off-duty hours, paid firefighters may only volunteer as firefighters so long as their volunteer hours are added to the regular hours for the purpose of determining if these firefighters received the required minimum wage and overtime pay. This is true even if there is no evidence of coercion, since employees are not allowed to waive their rights under the FLSA.

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 (DOL) recently issued Administrator signed Opinion Letter FLSA2008-13. 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 examines whether under the FLSA paid emergency medical technicians (EMTs) may also volunteer their services for the local volunteer emergency crew (crew). The crew in question started providing emergency services in the county in 1970. A tax-exempt volunteer organization, it maintains it own by-laws and policies, elects a Board of Trustees made up of the general public, and maintains virtually complete control over its volunteers. In 2002, the county hired a Director of Emergency Services and five EMTs. The question is whether the paid EMTs may continue to volunteer for the crew under the FLSA.

The DOL considered both the FLSA and the decision in Benshoff v. City of Virginia Beach, 180 F.3d 136 (4^th Cir. 1999). It found the following similarities between Benshoff and the instant case:

1. The volunteer squads provided services before the county became involved.
2. The volunteer squads had their own officers and directors.
3. Even though the county holds certification power, the rescue squads reserve the right to accept or reject certified volunteers.
4. The county provides some funding to the squads, but the squads also have other funding sources.

One difference was that in the case under consideration, the county EMTs performed the same services as the volunteers, while in Benshoff, only the volunteers performed advanced life support.

The DOL concluded that the county has not eviscerated the independent nature of the crew and that the crew remains separate and independent under the FLSA.

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 (DOL) recently issued Administrator signed Opinion Letter FLSA2008-12. 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 bonuses must be included in the regular rate of pay for overtime calculations under the FLSA.

On December 22, 2005, a city paid a bonus to generally all full-time emergency communications operators “in recognition of the high stress level of the employees’ duties.” The city had not previously promised this bonus, but the union representing the employees needed to approve it before payment. Since discretionary bonuses may be excluded from the regular rate of pay for overtime rate calculations, the Opinion Letter must resolve if the bonus be discretionary.

The city was concerned that even though it considered the bonus discretionary, it might be construed as non-discretionary since the city reached a memorandum of understanding (MOU) with the union representing the workers on December 14, 2005 and did not pay the bonus until December 22, 2005. The DOL concluded that the bonuses were not issued “pursuant to the MOU, but rather used the agreement to formalize a decision previously made.” Therefore the bonus was considered discretionary and “excludable from the regular rate of pay under §7(e)(3).”

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.

This week’s question comes from Kelly, a business owner. I already gave my employees their W-2s. Do I still need to file Form W-3? Answer: Anyone required to provide a Form W-2 to an employee must file Form W-3, Transmittal of Wage and Tax Statements. Employers may file Form W-3 on paper if transmitting fewer than 250 Forms W-2. Transmit Copy A of Form W-2 with Form W-3 to the Social Security Administration (SSA). Employers transmitting 250 or more Forms W-2 must file them electronically. All employers are encouraged by the SSA to file electronically, even if not otherwise required, to reduce costs and increase accuracy. Vision Payroll files Forms W-3 for all clients electronically with the SSA.

According to the US Department of Labor, in the week ending February 7, the advance figure for seasonally adjusted initial claims was 623,000, a decrease of 8,000 from the previous week’s revised figure of 631,000. The 4-week moving average was 607,500, an increase of 24,000 from the previous week’s revised average of 583,500.

Employers must file the 2008 Form W-3, Transmittal of Wage and Tax Statements, on or before March 2, 2009 if filing by paper or March 31, 2009 if filing by an approved electronic means.

Employers should check only one box in section b, Kind of Payer. The only exception is for Third-party sick pay, which should be checked along with one other box if third-party sick pay is reported on the Form W-3.

Box c should include only the total number of valid Forms W-2 filed, not including voids.

Box h should contain other EINs (employer identification numbers) used on Form 941, Form 943, Form 944, or Form CT-1 during the year. An example is a prior owner for whom the filer is a successor.

Boxes 1 through 11 should contain a simple arithmetic sum of all the Forms W-2 filed with this Form W-3 for the respective box.

Box 12 should also contain a sum of all the Forms W-2 filed with this Form W-3, but should be totaled irrespective of and without reference to any code.

Box 14 should contain the “federal income tax withheld on third-party payments of sick pay” even though the amount was already reported in box 2.

Box 15 should contain the two-character abbreviation for the state being reported, but if more than one state is reported, only an X should be entered. Likewise, boxes 16-19 should include the total for all such boxes, regardless of how many are reported.

Employers should reconcile Forms W-3 not only to the individual Forms W-2, but also to the sum of Forms 941, Forms 943, Forms 944, or Forms CT-1 filed for the year.

Vision Payroll files Forms W-3 for all clients electronically with the Social Security Administration. Contact Vision Payroll if you have any questions on Form W-3.

The US Department of Labor recently issued Administrator signed Opinion Letter FLSA2008-11. 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 Assistant Athletic Instructors (AAIs) qualify as teachers exempt under the FLSA.

The facts are that AAIs “teach proper skills and skill development to student-athletes”; a bachelor’s degree is required although a master’s degree or equivalent experience is preferred. The AAIs spend more than half their time teaching “physical health, team concepts, and safety.” Although they work under a head coach, they also exercise considerable discretion and independent judgment.

The AAIs spend time on activities that don’t include teaching activities, “such as developing effective recruitment strategies, recruiting and following up on prospective students, researching and targeting high schools and athletic camps as sources for potential student-athletes, and visiting high schools and athletic camps to conduct student interviews.” Since they spend more than half their time on teaching activities, however, the non-teaching time is not determinative. Furthermore, the institutions of higher learning where the AAIs work would presumably qualify as educational establishments. Therefore, the AAIs would qualify as exempt from minimum wage and overtime requirements under the FLSA.

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.

Monday, February 16, 2009 will be Washington’s Birthday, a federal holiday. Although the offices of Vision Payroll will be open and payrolls will be processed, most banks will be closed in observance of the holiday.

Payrolls dated February 16 will be paid February 13 unless a previous change in schedule has been submitted. Payrolls submitted after these processing deadlines will be pushed back until the next available processing day. No changes are required for payrolls dated February 19.

The next federal holiday will be Monday, May 25, 2009, Memorial Day. Contact Vision Payroll as soon as possible to make changes to or for questions on your processing schedule.