Vision Payroll

The US Department of Labor recently issued non-Administrator signed Opinion Letter FLSA2008-9NA. 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). Unlike signed Opinion Letters, unsigned Opinion Letters do not “provide a potential good faith reliance defense for violations of the FLSA.” This Opinion Letter discusses whether “jailers” who lack the power to make arrests qualify as “law enforcement personnel” partially exempt from overtime requirements. Although jailers may lack the power to make arrests, they qualify as “security personnel in correctional institutions” and thus qualify for the partial overtime 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 non-Administrator signed Opinion Letter FLSA2008-8NA. 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). Unlike signed Opinion Letters, unsigned Opinion Letters do not “provide a potential good faith reliance defense for violations of the FLSA.” This Opinion Letter discusses whether on-call time is compensable under the FLSA. A non-profit ambulance rescue service requires employees to be on-call from 6 am to 8 am and from 4 pm to 6 pm five days a week. The employee uses a pager while on-call and must respond to call with the ambulance within eight minutes. The question to be answered is whether the employee is “engaged to wait” (compensable) or “waiting to be engaged” (non-compensable). During the winter months, when there is an average of one call every four hour shift, the frequency of calls along with other factors mandated that the employees be compensated for their time. During the non-winter months, when calls were usually zero, one, or two per week, the on-call time would be non-compensable. 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.

A successor law firm is liable for unpaid payroll taxes of its predecessor and could not prevent the IRS from levying and placing liens on its accounts. In Hwang Law Firm, LLC v. United States, DC PA, C 07-2973 LFS, July 9, 2008, the court looked at continuity of ownership, continuation of enterprise, cessation of business, and assumption of obligations. In the predecessor, Hwang and Associates (H&A), and the successor, Hwang Law Firm, LLC, (HLF) Samuel Y. Hwang, a Pennsylvania attorney, was the “sole owner, officer, director, and stockholder.” The firms used some of the same office space and office equipment, had the same telephone and fax numbers, and passed client contracts and files from H&A to HLF. “Considered cumulatively, the balance of evidence on each factor” persuaded the court to grant summary judgment to the US on its claim that HLF was a successor to H&A under Pennsylvania law and therefore liable for payment of the unpaid employment taxes.

This week’s question comes from Jon, a sole proprietor: I run my business as a sole proprietorship. Can I pay myself wages and withhold taxes? Answer: Sole proprietors are considered self-employed and are not employees of the sole proprietorship. They cannot pay themselves wages, cannot have income tax, social security tax, or Medicare tax withheld, and cannot receive a Form W-2 from the sole proprietorship. They may receive a draw from the sole proprietorship and must pay quarterly federal estimated tax payments to cover the amount of federal income tax and self-employment tax liability they will have, unless covered by withholding on other income. Vision Payroll can work with you and your CPA to determine an appropriate draw and estimated tax payment schedule. You can then receive the draw as a check or direct deposit with each payroll and schedule appropriate deductions such as retirement plan contributions. Contact Vision Payroll today to get started.

According to the California Employment Development Department (EDD), employers in the county of Humboldt directly affected by the damage resulting from the fire may request up to a 60-day extension of time from EDD to file their State payroll reports and/or deposit State payroll taxes without penalty or interest. The written request for extension must be received within 60 days from the original delinquent date of the payment or return to file/pay. Contact Vision Payroll if you’ve been affected and need to file the extension request.

In Rev. Rul. 2008-45, the IRS ruled that the transfer of the sponsorship of a retirement plan from an employer to an unrelated entity when not connected “with a transfer of business assets, operation, or employees” is a violation of the exclusive benefit rule of §401(a). The plan would no longer be maintained by an employer for its employees since the transfer was to an entity that did not employ the plan participants. The IRS also announced that it was proposing a framework for legislation that would allow transfers of so-called frozen plans, “provided certain conditions are met.” The requirements proposed by the IRS are:

• Plan participants, their representatives, and ERISA regulators would be required to receive advance notice of a plan transfer, and the parties to the transaction would be required to provide regulators information necessary to review and approve the proposed transaction.
• Only financially strong entities in well-regulated sectors would be permitted to acquire a pension plan in a plan transfer transaction.
• The parties to the transaction would be required to demonstrate that participants’ benefits and the pension insurance system would be exposed to less risk as a result of the transfer, and that the transfer would be in the best interests of the participants and beneficiaries.
• Limitations on transfers would be imposed to limit undue concentration of risk.
• Transferees and members of their controlled groups would assume full responsibility for the liabilities of transferred plans and would comply with post-transaction reporting and fiduciary requirements.
• Subsequent transfer transactions would be subject to the rules applicable to original transfer transactions.

According to the US Department of Labor, in the week ending August 2, the advance figure for seasonally adjusted initial claims was 455,000, an increase of 7,000 from the previous week’s unrevised figure of 448,000. The 4-week moving average was 419,500, an increase of 26,750 from the previous week’s revised average of 392,750.

Do you need to create reports using payroll data over a time period? Using PayChoice Online you can prepare unlimited customizable reports. You can create payroll history for a single employee, entire departments, or all your employees and use these reports to help prepare workers’ compensation audit reports or Health Insurance Responsibility Disclosure (HIRD) forms. You can also export report data to Excel for use in proprietary spreadsheets. If you’re already using PayChoice Online, click Web Reports and then Custom Reports. Not using PayChoice Online yet? Contact Vision Payroll to get started.

The US Department of Labor recently issued non-Administrator signed Opinion Letter FLSA2008-7NA. 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). Unlike signed Opinion Letters, unsigned Opinion Letters do not “provide a potential good faith reliance defense for violations of the FLSA.” This Opinion Letter, in a question and answer format, discusses written policies regarding break and meal periods. The conclusions are as follows: 1) An employee, in violation of company policy, did not take a meal break or notify his supervisor that he did not take a break during a week in which he worked less than forty hours. No additional compensation is due the employee as long as he receives at least minimum wage for all hours worked, including the missed meal break. 2) The missed meal break that was worked counts toward the forty hour threshold for paying overtime to non-exempt employees. If the employee works more than forty hours, “the employee must be must be paid for all hours worked at the agreed rate plus the overtime premium.” 3) The answers to Q1 and Q2 are the same if, instead of missing a meal break, the employee arrives to work early or leaves work late in violation of written policy. 4) A written advisory to the employee not to work “unrecorded work hours” and that such work would subject the employee to disciplinary action is not necessarily enough to change the answer to Q3. Generally, it is management’s responsibility to make sure that such work should not be performed. 5) An employee receives time and one half pay that is not required under the FLSA, but paid due to company policy or contractual obligation, e.g., the employee is paid the premium if he works more than eight hours in a day. This premium may be credited toward any overtime premium required under the FLSA. Also, the additional pay does not need to be included in the calculation of the employee’s “regular” rate that is used to calculate the overtime premium. 6) Wages may be paid based on a methodology that rounds time worked “to the nearest five minutes, or the nearest one tenth or quarter of an hour” as long as, in the long run, the system does not fail to compensate employees properly for time worked. 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 unemployment rate rose to 5.7 percent, and nonfarm payroll employment continued to trend down in July (-51,000), the Bureau of Labor Statistics of the U.S. Department of Labor reported Friday. Employment continued to fall in construction, manufacturing, and several service-providing industries, while health care and mining continued to add jobs. Average hourly earnings rose by 6 cents, or 0.3 percent, over the month. Both the number of unemployed persons (8.8 million) and the unemployment rate (5.7 percent) rose in July. Over the past 12 months, the number of unemployed persons has increased by 1.6 million, and the unemployment rate has risen by 1.0 percentage point. Over the month, the unemployment rates for adult men (5.3 percent) and whites (5.1 percent) edged up while the rates for adult women (4.6 percent), blacks (9.7 percent), and Hispanics (7.4 percent) were little changed. The jobless rate for teenagers increased to 20.3 percent in July. The unemployment rate for Asians was 4.0 percent in July, not seasonally adjusted. Among the unemployed, the number of reentrants to the labor force in July rose by 207,000 to 2.7 million. The number has increased by 623,000 over the past 12 months. The number of unemployed persons who had lost their last job was about unchanged over the month at 4.4 million, but has risen by 778,000 over the year.