Vision Payroll

Can you ask a job applicant disability-related questions? Does it matter if you’ve made a conditional job offer? Can you ask a current employee disability-related questions? The federal Americans with Disabilities Act (ADA) defines when a covered employer may ask such questions. The Equal Employment Opportunity Commission (EEOC) provides guidance regarding these ADA provisions. 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.

Governor Arnold Schwarzenegger signed AB 10 into law recently. The new law, signed as an urgency statute, took effect immediately upon the signing by the governor. Under the law, certain computer software professionals who make $36 or more per hour, if paid hourly or $75,000 per year (paid at least monthly) if paid a salary, are exempt from the overtime provisions of California state law. Both amounts are scheduled to be adjusted annually in proportion to changes in the California Consumer Price Index. Trainees and other categories of employees are exempted from the overtime law. Contact Vision Payroll if you have questions on the change in California overtime law.

The IRS recently issued Notice 2008-82 which provides guidance on the recently enacted §114 of the Heroes Earnings Assistance and Relief Tax Act of 2008 (the HEART Act). The HEART Act amended §125 of the Internal Revenue Code of 1986 (IRC) to allow distributions of unused amounts in a Health Flexible Spending Arrangement (Health FSA, also called a 125 or cafeteria plan) to reservists ordered or called to active duty. In addition to providing guidance on “qualified reservist distributions” or QRDs, the Notice provides a transition rule allowing plans to be retroactively amended for QRDs made before January 1, 2010. Contact Vision Payroll if you have any questions on Notice 2008-82.

Nonfarm payroll employment declined by 159,000 in September, and the unemployment rate held at 6.1 percent, the Bureau of Labor Statistics of the U.S. Department of Labor reported recently. Employment continued to fall in construction, manufacturing, and retail trade, while mining and health care continued to add jobs.

The unemployment rate (6.1 percent) was unchanged in September, following a 0.4 percentage point rise in August. The number of unemployed persons was little changed at 9.5 million. Over the past 12 months, the number of unemployed persons has increased by 2.2 million and the unemployment rate has risen by 1.4 percentage points.

The unemployment rates for adult men (6.1 percent) and blacks (11.4 percent) rose in September. The jobless rates for teenagers (19.1 percent), whites (5.4 percent), and Hispanics (7.8 percent) were essentially unchanged. The unemployment rate for adult women declined to 4.9 percent, partly offsetting an increase in August. The unemployment rate for Asians in September was 3.8 percent, not seasonally adjusted.

Among the unemployed, the number of persons who lost a job rose by 347,000 to 5.2 million in September, with increases occurring both for those on temporary layoff and for those who do not expect to be recalled to work.

In September, the number of long-term unemployed (those jobless for 27 weeks or more) rose by 167,000 to 2.0 million, an increase of 728,000 over the past 12 months. The long-term unemployed accounted for 21.1 percent of total unemployment in September.

Following an investigation, the US Department of Labor has filed a lawsuit seeking more than $5 million in underpaid overtime. The suit was filed against CEMEX, Inc., a Houston-based provider of cement and concrete products. Employees in Arizona, California, Florida, Georgia, New Mexico, North Carolina, South Carolina, and Texas were allegedly underpaid overtime hours for piece rate and incentive bonus pay. The Fair Labor Standards Act (FLSA) requires that employees eligible for overtime be paid at one and one-half times their regular rate of pay, which should include most commissions, bonuses, and incentive pay. Vision Payroll provides a continuing series on the FLSA, but you should contact your labor attorney with specific questions on overtime hours and pay rates.

This week’s question comes from Mel, a small-business owner. I’ve heard that the Massachusetts HIRD report must now be filed on a quarterly basis. Is the report due November 15 for the third quarter? Answer:  The Health Insurance Responsibility Disclosure (HIRD) Report due November 15 and for the year ended September 30, 2008 must still be filed on an annual basis. Under 430 CMR 15.00, starting October 1, 2008 the base periods will be quarterly. Therefore, to determine the amount of any Fair Share Employer Contribution your company must pay, a quarterly calculation and filing will be required. Periods will end December 31, March 31, June 30, and September 30 and the filing and payments will be due on or before February 15, May 15, August 15, and November 15. Contact Vision Payroll if you have questions on your Fair Share Employer Contribution or HIRD Report.

According to the US Department of Labor, in the week ending September 27, the advance figure for seasonally adjusted initial claims was 497,000, an increase of 1,000 from the previous week’s revised figure of 496,000. It is estimated that the effects of Hurricane Gustav in Louisiana and the effects of Hurricane Ike in Texas added approximately 45,000 claims to the total. The 4-week moving average was 474,000, an increase of 11,500 from the previous week’s unrevised average of 462,500.

The Commonwealth of Massachusetts recently promulgated a new regulation, 201 CMR 17.00, titled Standards for The Protection of Personal Information of Residents of the Commonwealth.  The purpose of the regulation is to implement “the provisions of M.G.L. c. 93H relative to the standards to be met by persons who own, license, store or maintain personal information about a resident of the Commonwealth of Massachusetts.” Personal information is defined as:

[A] Massachusetts resident’s first name and last name or first initial and last name in combination with any one or more of the following data elements that relate to such resident: (a) Social Security number; (b) driver’s license number or state-issued identification card number; or (c) financial account number, or credit or debit card number, with or without any required security code, access code, personal identification number or password, that would permit access to a resident’s financial account; provided, however, that “Personal information” shall not include information that is lawfully obtained from publicly available information, or from federal, state or local government records lawfully made available to the general public.

Since all employers should normally store “personal information” about each employee, apparently all employers who employ a resident of the Commonwealth of Massachusetts will be required to comply with the regulations. Governor Deval Patrick has also issued a related Executive Order 504 requiring certification of compliance with the order by all state contractors. There are significant procedures that must be implemented and substantial fines for non-compliance. Vision Payroll will be communicating its compliance with the new regulations to all affected clients before 2009. We strongly suggest that you contact your attorney as soon as possible to discuss implementation of the new provisions.

Monday, October 13, 2008 will be Columbus Day, 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 October 13 will be paid October 10 unless a previous change in schedule has been submitted. Payroll changes and hours must be submitted before the processing deadline on October 8. For payrolls dated October 14, payroll changes and hours must be submitted before the processing deadline on October 9. For payrolls dated October 15, payroll changes and hours must be submitted before the processing deadline on October 10. Payrolls submitted after these processing deadlines will be pushed back until the next available processing day. No changes are required for payrolls dated October 16 or October 17. Contact Vision Payroll as soon as possible to make changes to or for questions on your processing schedule.

A North Dartmouth, Massachusetts woman was sentenced to 6½ years in federal prison for paying her employees under the table, thereby avoiding approximately $10 million in tax payments and $7 million in workers compensation insurance premiums. Aimee J. King McElroy also received three years probation and was ordered to pay more than $9 million in restitution. McElroy and her husband, Daniel W. McElroy, had been convicted of operating temporary employment agencies that paid their employees in cash in violation of a previous court order. Furthermore, they filed false tax returns and provided false payroll records to the insurances companies to conceal the cash payments.