Vision Payroll

The US Department of Labor (DOL) recently issued Administrator signed Opinion Letter FLSA2009-24. 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). Because the letter was apparently never mailed after it was signed, the DOL under new Secretary Hilda L. Solis has decided to withdraw the letter for further consideration. Therefore, this letter may not be relied upon as a statement of agency policy. It is possible that a different conclusion may be reached when the Opinion Letter is reissued.

In this Opinion Letter, the DOL had opined that a proposed pay system complied with the fluctuating-workweek method of payment. Under the proposed method, the employer would calculate the regular rate of pay by dividing a non-exempt employee’s fixed salary by 40 hours, regardless of the number of hours actually worked in that week, and using that rate to determine any overtime premium or double-time premium to be paid.

State laws may provide rules that are more beneficial to the employee and must be followed. The DOL may come to a different conclusion when it reissues the Opinion Letter after further consideration. Contact Vision Payroll if you have questions about this Opinion Letter.

The US Department of Labor (DOL) recently issued Administrator signed Opinion Letter FLSA2009-23. 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). Because the letter was apparently never mailed after it was signed, the DOL under new Secretary Hilda L. Solis has decided to withdraw the letter for further consideration. Therefore, this letter may not be relied upon as a statement of agency policy. It is possible that a different conclusion may be reached when the Opinion Letter is reissued.

In this Opinion Letter, the DOL had redefined its definition of a tipped employee in situations in which an employee performs some duties related to a tip-producing occupation and some duties unrelated to a tip-producing occupation. Such employees may have dual jobs, such as a maintenance man in a hotel who also serves as a waiter and a single job with dual responsibilities such as “a waitress who spends part of her time cleaning and setting tables, toasting bread, making coffee and occasionally washing dishes or glasses.”

Different courts had issued conflicting rulings as to whether and to what extent unrelated duties could be performed in tip-producing occupations, how those duties were to be determined, and when the tip credit could be taken. The DOL had attempted to clarify in which situations the credit could be claimed. It had listed certain duties that it considered “core or supplemental for the appropriate tip-producing occupation.” It also wanted to clarify that some time spent performing unrelated duties may be exempt under a de minimis rule in the regulations.

State laws may provide rules that are more beneficial to the employee and must be followed. The DOL may come to a different conclusion when it reissues the Opinion Letter after further consideration. Contact Vision Payroll if you have questions about this Opinion Letter.

This week’s question comes from Jason, an HR director. We mailed a Form W-2 to an employee who terminated employment during 2009. The Form W-2 was returned by the post office with no forwarding address. What should we do with a returned Form W-2? Answer: If the post office returns a Form W-2 as undeliverable, the employer should keep a copy of the Form W-2 until April 15 of the fourth year after the year of issue. Therefore, an undeliverable Form W-2 for 2009 should be kept until April 15, 2013. An undeliverable Form W-2 should not be sent to the Social Security Administration (SSA). Employers who can store electronically and reproduce an undeliverable Form W-2 need not keep the undelivered form. Customers of Vision Payroll need not keep copies since they can be reproduced from their ViewChoice CD. We recommend two copies of the ViewChoice CD with one stored on-site for easy access and one stored off-site for disaster recovery. Contact Vision Payroll if you have further questions.

According to the US Department of Labor, in the week ending February 20, the advance figure for seasonally adjusted initial claims was 496,000, an increase of 22,000 from the previous week’s revised figure of 474,000. The 4-week moving average was 473,750, an increase of 6,000 from the previous week’s revised average of 467,750.

The advance seasonally adjusted insured unemployment rate was 3.5% for the week ending February 13, unchanged from the prior week’s unrevised rate of 3.5%.

The advance number for seasonally adjusted insured unemployment during the week ending February 13 was 4,617,000, an increase of 6,000 from the preceding week’s revised level of 4,611,000. The 4-week moving average was 4,600,750, an increase of 4,250 from the preceding week’s revised average of 4,596,500.

The fiscal year-to-date average for seasonally adjusted insured unemployment for all programs is 5.209 million.

The filing deadline for 2009 Form 1096 is March 1, 2010 for most returns. The returns due on that day include Forms 1099, Form 1098, Form 3921, Form 3922, and Form W-2G. The deadline for filing Form 5498, Form 5498-ESA, and Form 5498-SA is June 1, 2010. Filers transmitting more than 250 of any type information return must file electronically. Not filing electronically when required and without a waiver could subject the filer to a penalty. Additionally, filers who submit returns that are unable to be scanned may be subject to a penalty of $50 per return. Contact Vision Payroll if you have any questions on the Form 1096 filing deadlines.

The US Department of Labor (DOL) has announced that it has cited Robert Ferrari, Inc. for “child labor and minimum wage violations of the Fair Labor Standards Act (FLSA).”

According to the DOL, the investigation revealed both employment of individuals under the age of twelve and federal minimum wage violations. As a result, Ferrari was penalized $2,282 and $4,888, respectively. Additionally, a $700 penalty was assessed “for transportation and recordkeeping violations of the Migrant and Seasonal Agricultural Protection Act (MSPA).”

Due to the complexity of the laws involved and the penalties that may be assessed for violations thereof, Vision Payroll strongly recommends employers consult with competent labor law attorneys to ensure compliance.

The US Department of Labor (DOL) recently issued Administrator signed Opinion Letter FLSA2009-22. 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). Because the letter was apparently never mailed after it was signed, the DOL under new Secretary Hilda L. Solis has decided to withdraw the letter for further consideration. Therefore, this letter may not be relied upon as a statement of agency policy. It is possible that a different conclusion may be reached when the Opinion Letter is reissued.

In this Opinion Letter, the DOL confirmed its previously stated position “that where a state law requires a minimum wage less than the federal minimum wage and forbids a tip credit, the employer may nevertheless take a tip credit in the amount of the difference between state and federal law.” The Opinion Letter was specifically concerned with a Minnesota law that “purports to prohibit taking a credit for gratuities ‘towards the payment of the minimum wage set…by federal law.’”

State laws may provide rules that are more beneficial to the employee and must be followed. The DOL may come to a different conclusion when it reissues the Opinion Letter after further consideration. Contact Vision Payroll if you have questions about this Opinion Letter.

The Internal Revenue Service (IRS) has issued a statement stating that tax return processing and issuance of refunds will not be affected by the recent tragedy in Austin, Texas. According to the statement, “the IRS does not process tax returns or issue refunds at the Echelon 1 Building at 9430 Research Blvd. in Austin, Texas.” IRS Commsioner Doug Shulman has also issued a statement concerning the tragedy.

The US Department of Labor (DOL) recently issued Administrator signed Opinion Letter FLSA2009-21. 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).

In this Opinion Letter, the DOL stated that a company’s nondiscretionary safety bonus complies with the overtime requirements of the FLSA. Employees who meet certain requirements during a specified period receive a set amount for each regular hour worked. Employees who worked overtime during that period will receive one and one-half times the set amount for each overtime hour worked. “The bonus is applied uniformly across all hours worked, and an additional one-half times the bonus rate is paid for all overtime hours” so the plan complies with 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.

This week’s question comes from Joe, a restaurant owner. We have many employees whose native language is Spanish. They are better able to understand forms in Spanish than they are in English. The regular 2010 Form W-4 is available in English, but we can’t find the Spanish version. When will Form W-4 in Spanish be available for 2010? Answer: The 2010 Form W-4, Employee’s Withholding Allowance Certificate was released last December. The Spanish equivalent, Formulario W-4(SP), Certificado de Exención de la Retención del Empleado, is generally not available until March or April. Therefore, expect the 2010 Formulario W-4(SP) to be available sometime in the next two months. Contact Vision Payroll if you have any further questions on Formulario W-4(SP).