Vision Payroll

This week’s question comes from Sylvia, a payroll manager.

Sylvia asks:

We have employees who worked overtime this past week and received bonuses. Do we need to include bonuses in overtime calculations?

Answer: The bonuses may or may not have to be included in the overtime calculation. Discretionary bonuses are not included in calculating overtime pay, but non-discretionary bonuses are included.

Both the Decision to Pay a Bonus and the Amount of the Bonus Must Be Discretionary

Under 29 USC §207(e)(3)(a), in order for a bonus not to be included:

Both the fact that payment is to be made and the amount of the payment are determined at the sole discretion of the employer at or near the end of the period and not pursuant to any prior contract, agreement, or promise causing the employee to expect such payments regularly.

Regulations Further Clarify the Law

The regulations issued under this section (29 CFR §778.221(b)) expand upon the explanation under the law:

In order for a bonus to qualify for exclusion as a discretionary bonus under [the law stated above] the employer must retain discretion both as to the fact of payment and as to the amount until a time quite close to the end of the period for which the bonus is paid. The sum, if any, to be paid as a bonus is determined by the employer without prior promise or agreement. The employee has no contract right, express or implied, to any amount.

State Laws May Be More Beneficial

State laws may provide rules that are more beneficial to the employee and must be followed. Vision Payroll recommends that employers contact a labor law attorney to ensure that their bonus plans will be considered discretionary if they plan to exclude the bonus from the overtime calculation.

According to the US Department of Labor, in the week ending October 8, the advance figure for seasonally adjusted initial claims was 404,000, a decrease of 1,000 from the previous week’s revised figure of 405,000. The 4-week moving average was 408,000, a decrease of 7,000 from the previous week’s revised average of 415,000.

Advance Seasonally Adjusted Insured Unemployment Rate Decreases

The advance seasonally adjusted insured unemployment rate was 2.9% for the week ending October 1, a decrease of 0.1 percentage points from the prior week’s revised rate of 3.0%.

Advance Seasonally Adjusted Insured Unemployment Decreases

The advance number for seasonally adjusted insured unemployment during the week ending October 1 was 3,670,000, a decrease of 55,000 from the preceding week’s revised level of 3,725,000. The 4-week moving average was 3,724,000, a decrease of 21,250 from the preceding week’s revised average of 3,745,250.

Nonfarm payroll employment edged up by 103,000 in September, and the unemployment rate held at 9.1%, the US Bureau of Labor Statistics reported today. The increase in employment partially reflected the return to payrolls of about 45,000 telecommunications workers who had been on strike in August. In September, job gains occurred in professional and business services, health care, and construction. Government employment continued to trend down.

Household Survey Data

The number of unemployed persons, at 14.0 million, was essentially unchanged in September, and the unemployment rate was 9.1%. Since April, the rate has held in a narrow range from 9.0 to 9.2%

Among the major worker groups, the unemployment rates for adult men (8.8%), adult women (8.1%), teenagers (24.6%), whites (8.0%), blacks (16.0%), and Hispanics (11.3%) showed little or no change in September. The jobless rate for Asians was 7.8%, not seasonally adjusted.

The number of long-term unemployed (those jobless for 27 weeks and over) was 6.2 million in September. These individuals accounted for 44.6% of the unemployed.

Both the labor force and employment increased in September. However, the civilian labor force participation rate, at 64.2%, and the employment-population ratio, at 58.3%, were little changed.

The number of persons employed part time for economic reasons (sometimes referred to as involuntary part-time workers) rose to 9.3 million in September. These individuals were working part time because their hours had been cut back or because they were unable to find a full-time job.

In September, about 2.5 million persons were marginally attached to the labor force, about the same as a year earlier. (The data are not seasonally adjusted.) These individuals were not in the labor force, wanted and were available for work, and had looked for a job sometime in the prior 12 months. They were not counted as unemployed because they had not searched for work in the 4 weeks preceding the survey.

Among the marginally attached, there were 1.0 million discouraged workers in September, down by 172,000 from a year earlier. (The data are not seasonally adjusted.) Discouraged workers are persons not currently looking for work because they believe no jobs are available for them. The remaining 1.5 million persons marginally attached to the labor force in September had not searched for work in the 4 weeks preceding the survey for reasons such as school attendance or family responsibilities.

Establishment Survey Data

Total nonfarm payroll employment edged up by 103,000 in September. Since April, payroll employment has increased by an average of 72,000 per month, compared with an average of 161,000 for the prior 7 months. In September, job gains occurred in professional and business services, health care, and construction. Government employment continued to trend down.

Employment in professional and business services increased by 48,000 over the month and has grown by 897,000 since a recent low in September 2009. Employment in temporary help services edged up in September; this industry has added 53,000 jobs over the past 3 months. In September, employment growth continued in computer systems design and in management and technical consulting services.

Health care employment continued to expand in September, with an increase of 44,000. Within the industry, job gains occurred in ambulatory health care services (+26,000) and in hospitals (+13,000).

Construction employment increased by 26,000 over the month, after showing little movement since February. The over-the-month gain was due to employment increases in the nonresidential construction industries, which includes heavy and civil construction. Mining employment continued to trend up in September.

Employment in information was up by 34,000 over the month due to the return of about 45,000 telecommunications workers to payrolls after an August strike.

Manufacturing employment changed little in September (-13,000) and has been essentially flat for the past 2 months.

Within retail trade, employment declined in electronic and appliance stores (-9,000) in September. Employment in wholesale trade, transportation and warehousing, financial activities, and leisure and hospitality changed little.

Government employment continued to trend down over the month (-34,000). The U.S. Postal Service continued to lose jobs (-5,000). Local government employment declined by 35,000 and has fallen by 535,000 since September 2008.

The average workweek for all employees on private nonfarm payrolls edged up by 0.1 hour over the month to 34.3 hours following a decrease of 0.1 hour in August. The manufacturing workweek edged down by 0.1 hour in September to 40.2 hours. Factory overtime increased by 0.1 hour to 3.2 hours. The average workweek for production and nonsupervisory employees on private nonfarm payrolls edged up by 0.1 hour to 33.6 hours in September.

In September, average hourly earnings for all employees on private nonfarm payrolls increased by 4 cents, or 0.2%, to $23.12. This increase followed a decline of 4 cents in August. Over the past 12 months, average hourly earnings have increased by 1.9%. In September, average hourly earnings of private-sector production and nonsupervisory employees increased by 3 cents, or 0.2%, to $19.52.

The change in total nonfarm payroll employment for July was revised from +85,000 to +127,000, and the change for August was revised from 0 to +57,000.

According to the US Department of Labor, in the week ending October 1, the advance figure for seasonally adjusted initial claims was 401,000, an increase of 6,000 from the previous week’s revised figure of 395,000. The 4-week moving average was 414,000, a decrease of 4,000 from the previous week’s revised average of 418,000.

Advance Seasonally Adjusted Insured Unemployment Rate Decreases

The advance seasonally adjusted insured unemployment rate was 2.9% for the week ending September 24, a decrease of 0.1 percentage points from the prior week’s unrevised rate.

Advance Seasonally Adjusted Insured Unemployment Decreases

The advance number for seasonally adjusted insured unemployment during the week ending September 24 was 3,700,000, a decrease of 52,000 from the preceding week’s revised level of 3,752,000. The 4-week moving average was 3,739,000, a decrease of 9,750 from the preceding week’s revised average of 3,748,750.

This week’s question comes from Steve, a small business owner.

Steve asks:

I’ve read about the Voluntary Classification Settlement Program (VCSP) and its application process with the Internal Revenue Service (IRS). What are the IRS and Department of Labor (DOL) doing about workers who receive 1099s?

Answer: The IRS and DOL are entering into agreements that include the IRS and DOL as well as several states to share information and coordinate enforcement of current laws and regulations.

Memoranda Signed at Washington Ceremony

Secretary of Labor Hilda L. Solis recently hosted a ceremony at DOL headquarters in Washington to sign a memorandum of understanding with the IRS that will improve departmental efforts to end the business practice of misclassifying employees in order to avoid providing employment protections. In addition, labor commissioners and other agency leaders representing seven states signed memoranda of understanding with the department’s Wage and Hour Division (WHD) and, in some cases, its Employee Benefits Security Administration, Occupational Safety and Health Administration, Office of Federal Contract Compliance Programs and Office of the Solicitor. The signatory states are Connecticut, Maryland, Massachusetts, Minnesota, Missouri, Utah and Washington. Secretary Solis also announced agreements for the WHD to enter into memoranda of understanding with the state labor agencies of Hawaii, Illinois and Montana, as well as with New York’s attorney general.

DOL and IRS Will Share Information with Participating States

The memoranda of understanding will enable the DOL to share information and coordinate law enforcement with the IRS and participating states in order to level the playing field for law-abiding employers and ensure that employees receive the protections to which they are entitled under federal and state law.

Secretary Solis: We’re Standing United to End the Practice of Misclassifying Employees

“We’re here today to sign a series of agreements that together send a coordinated message: We’re standing united to end the practice of misclassifying employees,” said Secretary Solis. “We are taking important steps toward making sure that the American dream is still available for all employees and responsible employers alike.”

Commissioner Shulman: We Will Work Together More Efficiently to Address Worker Misclassification Issues

“This agreement takes the partnership between the IRS and DOL to a new level,” said IRS Commissioner Doug Shulman. “In this new phase of our relationship, we will work together more efficiently to address worker misclassification issues, and better serve the needs of small businesses and employees.”

Misclassification Can Create Economic Pressure for Law-Abiding Business Owners

Business models that attempt to change, obscure or eliminate the employment relationship are not inherently illegal, unless they are used to evade compliance with federal labor laws — for example, if an employee is misclassified as an independent contractor and subsequently denied rights and benefits to which he or she is entitled under the law. In addition, misclassification can create economic pressure for law-abiding business owners.

Memoranda Arose as Part of the Misclassification Initiative

These memoranda of understanding arose as part of the department’s Misclassification Initiative, which was launched under the auspices of Vice President Biden’s Middle Class Task Force with the goal of preventing, detecting and remedying employee misclassification.

Contact Vision Payroll Today

Contact Vision Payroll if you have further questions on the memoranda of understanding.

According to the US Department of Labor, in the week ending September 24, the advance figure for seasonally adjusted initial claims was 391,000, a decrease of 37,000 from the previous week’s revised figure of 428,000. The 4-week moving average was 417,000, a decrease of 5,250 from the previous week’s revised average of 422,250.

Advance Seasonally Adjusted Insured Unemployment Rate Remains Unchanged

The advance seasonally adjusted insured unemployment rate was 3.0% for the week ending September 17, unchanged from the prior week’s unrevised rate.

Advance Seasonally Adjusted Insured Unemployment Decreases

The advance number for seasonally adjusted insured unemployment during the week ending September 17 was 3,729,000, a decrease of 20,000 from the preceding week’s revised level of 3,749,000. The 4-week moving average was 3,743,000, a decrease of 4,500 from the preceding week’s revised average of 3,747,500.

This week’s question comes from Allan, a small-business owner.

Allan asks…

I read about the Voluntary Classification Settlement Program (VCSP). I have some workers who might need to be classified as employees. How do I apply for the VCSP?

Answer: Employers may use Form 8952, Application for Voluntary Classification Settlement Program (VCSP), to apply for participation in the VCSP.

Eligibility Requirements

The instructions to Form 8952 list the following eligibility requirements to participate in the VCSP:

1. Want to voluntarily reclassify certain workers as employees for federal income tax withholding, Federal Insurance Contributions Act (FICA), and Federal Unemployment Tax Act taxes (collectively, federal employment taxes) for future tax periods.
2. Be presently treating the workers as non-employees.
3. Have satisfied any Form 1099 requirements for each of the workers for the 3 preceding calendar years ending before the date Form 8952 is filed. A taxpayer will have satisfied its Form 1099 filing requirements if it provided Forms 1099 to the workers being reclassified for the period of time that the workers worked for the taxpayer. For example, a taxpayer who has only been in business for two years will have satisfied its Form 1099 filing requirements if it provided the workers being reclassified with Forms 1099 for those two years.
4. Have consistently treated the workers as non-employees.
5. Have no dispute with the Internal Revenue Service (IRS) as to whether the workers are non-employees or employees for federal employment tax purposes.
6. Not be under examination by the IRS.
7. Not be under examination by the Department of Labor (DOL) or any state agency for the proper classification of the workers.
8. Not have been examined previously by the IRS or the DOL for the classification of workers; or,
9. If the taxpayer has been examined previously by the IRS or the DOL for the classification of workers, taxpayer must have complied with the results of the prior examination.

In addition, as part of the VCSP, a taxpayer must agree to extend the period of limitations on assessment of employment taxes for 3 years for the first, second, and third calendar years beginning after the date the taxpayer elects to begin treating the workers as employees under the VCSP closing agreement. The taxpayer has the right to refuse to extend the period of limitations on assessment or to limit the extension to particular issues or to a particular period of time. However, if the taxpayer refuses to extend the period of limitations on assessment or provides only a limited extension, the IRS will not execute the VCSP closing agreement.

Filing Deadline for Form 8952

Although there is no absolute filing deadline for Form 8952, it should be filed at least 60 days before the date you want to begin treating the class or classes of workers as employees.

No Payment Due with Form 8952

Although you will be required to calculate the amount of the payment to be paid, the amount should not be sent with Form 8952. It must be sent with the signed closing agreement.

Contact Vision Payroll Today for Information on Form 8952

Contact Vision Payroll for further information on Form 8952.

According to the US Department of Labor, in the week ending September 17, the advance figure for seasonally adjusted initial claims was 423,000, a decrease of 9,000 from the previous week’s revised figure of 432,000. The 4-week moving average was 421,000, an increase of 500 from the previous week’s revised average of 420,500.

Advance Seasonally Adjusted Insured Unemployment Rate Remains Unchanged

The advance seasonally adjusted insured unemployment rate was 3.0% for the week ending September 10, unchanged from the prior week’s unrevised rate.

Advance Seasonally Adjusted Insured Unemployment Decreases

The advance number for seasonally adjusted insured unemployment during the week ending September 10 was 3,727,000, a decrease of 28,000 from the preceding week’s revised level of 3,755,000. The 4-week moving average was 3,742,000, a decrease of 6,500 from the preceding week’s revised average of 3,748,500.

The Internal Revenue Service (IRS) today launched a new program that will enable many employers to resolve past worker classification issues and achieve certainty under the tax law at a low cost by voluntarily reclassifying their workers.

Minimal Payment Will Clear Up Prior Liabilities

This new program will allow employers the opportunity to get into compliance by making a minimal payment covering past payroll tax obligations rather than waiting for an IRS audit.

Part of the “Fresh Start” Initiative

This is part of a larger “Fresh Start” initiative at the IRS to help taxpayers and businesses address their tax responsibilities.

Settlement Program Provides relief and Certainty

“This settlement program provides certainty and relief to employers in an important area,” said IRS Commissioner Doug Shulman. “This is part of a wider effort to help taxpayers and businesses to help give them a fresh start with their tax obligations.”

VCSP Designed to Increase Tax Compliance

The new Voluntary Classification Settlement Program (VCSP) is designed to increase tax compliance and reduce burden for employers by providing greater certainty for employers, workers and the government. Under the program, eligible employers can obtain substantial relief from federal payroll taxes they may have owed for the past, if they prospectively treat workers as employees. The VCSP is available to many businesses, tax-exempt organizations and government entities that currently erroneously treat their workers or a class or group of workers as nonemployees or independent contractors, and now want to correctly treat these workers as employees.

Eligibility Criteria for the Program

To be eligible, an applicant must:

• Consistently have treated the workers in the past as nonemployees,
• Have filed all required Forms 1099 for the workers for the previous three years,
• Not currently be under audit by the IRS, the Department of Labor or a state agency concerning the classification of these workers.

File Form 8952 to Apply for the Program

Interested employers can apply for the program by filing Form 8952, Application for Voluntary Classification Settlement Program, at least 60 days before they want to begin treating the workers as employees.

Payment Due upon Acceptance

Employers accepted into the program will pay an amount effectively equaling just over one percent of the wages paid to the reclassified workers for the past year. No interest or penalties will be due, and the employers will not be audited on payroll taxes related to these workers for prior years. Participating employers will, for the first three years under the program, be subject to a special six-year statute of limitations, rather than the usual three years that generally applies to payroll taxes.

Contact Vision Payroll Today

Contact Vision Payroll for further information on the VCSP.

According to the US Department of Labor, in the week ending September 10, the advance figure for seasonally adjusted initial claims was 428,000, an increase of 11,000 from the previous week’s revised figure of 417,000. The 4-week moving average was 419,500, an increase of 4,000 from the previous week’s revised average of 415,500.

Advance Seasonally Adjusted Insured Unemployment Rate Remains Unchanged

The advance seasonally adjusted insured unemployment rate was 3.0% for the week ending September 3, unchanged from the prior week’s unrevised rate.

Advance Seasonally Adjusted Insured Unemployment Decreases

The advance number for seasonally adjusted insured unemployment during the week ending September 3 was 3,726,000, a decrease of 12,000 from the preceding week’s revised level of 3,738,000. The 4-week moving average was 3,741,000, an increase of 1,250 from the preceding week’s revised average of 3,739,750.