Vision Payroll

The IRS recently issued guidance for reporting wages paid in 2008 (including accrued wages and vacation pay) on behalf of deceased employees. Although state law generally controls who receives the unpaid wages, the reporting follows the same rules even if the check is reissued in the name of the employee’s estate or beneficiary. If the employee died in 2008, the employer withholds social security and Medicare taxes and reports the payments in boxes 3 and 5 of the 2008 Form W-2. The wages are not to be reported in box 1 of the 2008 Form W-2 and no income tax is to be withheld. Instead, the amount of the payment must be reported in box 3 of the 2008 Form 1099-MISC using the name and taxpayer identification number of the recipient of the payment. If the employee died in 2007 or before, there is no reporting on the 2008 Form W-2 and no withholding of social security and Medicare taxes. The payment must still be reported in box 3 of the 2008 Form 1099-MISC using the name and taxpayer identification number of the recipient of the payment. Contact Vision Payroll to ensure proper reporting for payments of wages made on behalf of your deceased employees.

The US Department of Labor recently issued Administrator signed Opinion Letter FLSA2008-5. 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 school district can add an extra week to a pay period about five times over a twenty-eight year period and still comply with the Fair Labor Standards Act. For example, an employee who earns $13 per hour is paid a bi-weekly salary of $1,040 ($13 per hour X 40 hours per week X 52 weeks per year ÷ 26 pay periods per year). Non-exempt employees are paid overtime for hours worked in excess of forty in any particular week. Since there is a day or two more than fifty-two weeks in every year, the district would sometimes have twenty-seven pay periods. To maintain its policy of twenty-six pay periods per year, the district adds a third week to one pay period, but still pays the same salary. The employee in the example above would still receive $1,040 for a three-week period. Since the rate of pay is $8.67 for the three-week period, ($1,040 ÷ 120 [40 hours per week X 3 weeks]), the pay rate exceeds federal minimum wage. Furthermore, since non-exempt employees were paid overtime for hours worked in excess of forty in any of the three weeks, the policy did not violate 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 Louisa, an HR manager: We have individuals who perform services for us. Does Massachusetts have any laws to determine if these individuals are our employees or independent contractors? Answer: In Massachusetts General Laws (MGL), c. 149, §148B three tests are enumerated and unless the individual meets all three tests, an employer-employee relationship will result. The tests are (1) the individual is free from control and direction in connection with the performance of the service, both under his contract for the performance of service and in fact; and (2) the service is performed outside the usual course of the business of the employer; and, (3) the individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed. The law also states that not withholding federal or state income taxes or not paying unemployment insurance or workers compensation insurance premiums for this individual has no impact on the determination. Furthermore, even if the individual has a workers’ compensation insurance policy, it is not relevant for making the determination. To further complicate matters, the Massachusetts Department of Revenue (DOR) issued TIR 05-11, that states the DOR will follow the rules of MGL c. 62B for withholding purposes. Significant penalties exist for misclassifying workers, so be sure to consult your attorney if you have further questions.

The US Department of Labor recently issued Administrator signed Opinion Letter FLSA2008-4. 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. This Opinion Letter discusses whether a requirement to wear a certain type of shoe constitutes a uniform. It also discusses whether the employer is allowed to deduct a portion of the cost of the shoes from the employee’s pay, even if such deduction causes the employee’s pay rate to be below minimum wage. In this case, the employer “requires employees to wear ‘dark-colored’ shoes without prescribing any particular quality, brand, style, model, or type.” Optionally, an employee may purchase such shoes from a vendor through a program administered by the employer that allows the employee to elect to have the employer pay the cost of the shoes and deduct the cost from the employee’s paycheck. Since the employer’s only requirements were the color and that the shoes have non-slip soles and not be open-toed, they were not considered to be part of a uniform. Also, as the shoes were not part of a uniform and the employer did not deduct more than the actual cost of the shoes, the shoes can be considered “other facilities” furnished by the employer and therefore part of the wages paid the employee. 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.

According to the US Department of Labor, in the week ending July 26, the advance figure for seasonally adjusted initial claims was 448,000, an increase of 44,000 from the previous week’s revised figure of 404,000. The 4-week moving average was 393,000, an increase of 11,000 from the previous week’s revised average of 382,000.

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States continued their crackdown on employers with overtime violations as New York announced a $1.23 million settlement with Finkelstein Morgan LLC and J. Siebold Construction Corporation (“Siebold”). The settlement represents all the unpaid overtime for the period from October 2002 through August 2006 plus damages. Siebold employed the workers to renovate several building owned or managed by Finkelstein Morgan. During that time period 284 employees who worked more than forty hours were paid straight time and not time-and-a-half as required by state and federal law.

A wage garnishment is when an employer, generally as a result of a court order, withholds an amount from an employee’s earnings in payment of a debt. Restrictions on wage garnishments are defined in Title III of the Consumer Credit Protection Act. §303 of Title III restricts the amount of most garnishments to the lesser of 25% of the employee’s “disposable earnings” or the amount by which the employee’s disposable earnings exceed 30 times the Federal minimum wage. Disposable earnings for this purpose generally means gross wages less deductions required by law. Voluntary deductions not required by law are not included in the calculation of disposable earnings. With the recent increase in the federal minimum wage, the calculation of the maximum garnishment amount has changed. For employees with disposable earnings greater than $262.00 ($6.55 X 40), a maximum of 25% can be garnished. For employees with disposable earnings less than $262.00 but more than $196.50 ($6.55 X 30), the garnishment equals the amount by which disposable earnings exceed $196.50. For employees with disposable earnings of $196.50 or less, no garnishment is allowed. There are exceptions for child support, alimony, certain bankruptcy court orders, and debts for federal and state taxes. A state law that allows a smaller garnishment takes precedence over the federal law. There are also different calculations for some other debts owed to the federal government and its agencies. Contact Vision Payroll if you have any questions on calculating the correct amount of garnishments on employee’s wages.

An employee required to launder his work aprons by Starbucks Corporation (“Starbucks”) was not entitled to compensation under California law (Douglas O’Connor v. Starbucks Corporation, ND Cal, C 06-3706 VRW, July 14, 2008). Under an explanation of the relevant regulations by the California Industrial Wage Commission, “[e]mployers must maintain or provide a maintenance allowance for uniforms requiring ironing or dry cleaning or uniforms requiring special laundering for heavy soil.” In granting summary judgment, the court ruled that “Starbucks owes plaintiff a duty to pay such compensation only if the aprons require laundering separate from plaintiff’s regular laundry.” Since O’Connor, a former Starbucks barista, was unable to establish that the aprons required either dry cleaning or laundering separate from other articles as he had maintained, Starbucks owed no duty to compensate him.

The US Department of Labor proposed a rule change that would require participants in 401(k) plans to receive “investment-related information in a comparative chart or similar format.” The chart could be based on a model chart designed by the Department of Labor or a plan fiduciary could design a different chart or use a comparative format to relay the information. On a regular basis, participants would receive “basic information about the plan and its investment options, such as what options are available under the plan, how to give investment instructions, investment returns and fees and expenses, and how to obtain more detailed information.” The proposed regulation would be effective for plan years beginning after December 31, 2008.