Feds reveal how to handle tax treatment of wellness rewards
Did you get the Wellness Program notice from the IRS? Jared Bilski outlines how the new memorandum may impact your wellness benefits in the article below.
Original Post from HRMorning.com on June 10, 2016
Most HR pros are focused on ensuring their wellness rewards meet the strict requirements of the ACA and the ADA. But the IRS just reminded employers there are other considerations as well.
Via its Office of Chief Counsel, the agency just released a memorandum on its views of the tax treatment of rewards under employer wellness plans.
Note: IRS memoranda don’t constitute formal advice. However, they do give employers a good understanding of how the agency views compliance topics.
Cash, cash-equivalent rewards
The memorandum confirms that certain tax rules apply to employer-sponsored wellness program. Coverage — including health screenings and other medical care — provided by an employer-sponsored wellness program is generally excluded from an employee’s income under specific sections of The Tax Code. But cash rewards or cash-equivalent rewards earned as a result of a wellness program are a different story.
According to the IRS, if an employee earns a cash reward under the program, that reward must be included in the employee’s gross income under Code Section 61 and is a payment of wages subject to employment taxes.
In addition, if an employee earns a cash-equivalent reward that isn’t excludible from his or her income — e.g., the payment of gym membership fees — the fair market value of that reward will be included in the employee’s gross income and is a payment of wages subject to employment taxes.
Additional clarifications
A few additional clarifications in the IRS memorandum:
- If employers reimburse all or a portion of the premiums paid by the employee through a cafeteria plan for the company’s wellness plan, those reimbursements will be included in the employee’s gross income and are payments of wages subject to employment taxes.
- Although some non-cash benefits may be excludible as de minimis fringe benefits (e.g., a T-shirt for a company wellness plan), cash fringe benefits generally aren’t eligible to be treated as excludable de minimis fringe benefits.
Find the original article here.
Source:
Bilski, J. (2016, June 10). Fed reveal how to handle tax treatment of wellness rewards [Web log post]. Retrieved from https://www.hrmorning.com/feds-reveal-how-to-handle-tax-treatment-of-wellness-rewards/
ACA Puts Employers Between A Rock And A Hard Place
A great article by Greta Engle on the upcoming challenges with the ACA.
Original Post from SHRM.org on July 8, 2016
The value of employer-sponsored health care recently has come under scrutiny from lawmakers as they look for solutions to reduce the federal deficit and alternatives to the Affordable Care Act (ACA). If you’re not a political junkie like me, let me provide some context.
Historically, one of the largest subsidies for health insurance comes from employment-based coverage. That’s because the federal tax system provides preferential treatment for health care coverage that people receive from their employers. Employers’ payments for health coverage are excluded from income and payroll taxes. And, most times, employee contributions are also excluded from income and payroll taxes.
There are many benefits of employer-sponsored health care coverage that Congress and specifically House Speaker Paul Ryan, who has commissioned a Task Force on Health Care Reform, should realize. For starters, the ability to offer health benefits sets an employer apart and can be a strong driver in a retention or recruitment strategy. American workers in today’s climate have an expectation of health care as part of their compensation package (remember the good old days when you were considered to have a professional job if your employer provided health benefits?) and employer-sponsored health benefits costs are pretax deductions. Additionally, flexible spending accounts (FSAs) and health savings accounts (HSAs) provide another savings tool for employees to avoid out-of-pocket expenditures coming from a household budget. These are just a few of the benefits.
While the ACA includes some provisions that should be applauded, as they’ve increased access and coverage, there are some provisions that have had an adverse effect—especially on employers. We’re now beginning to realize the costs associated with the ACA, and, in particular, how our economy has been impacted. Some Americans are now working part time or having their hours cut by employers seeking to avoid providing coverage under the full-time mandate of a 30-hour workweek. Then there’s my favorite topic: the excise tax, or “Cadillac tax,” that was delayed until January 2020. To avoid the anticipated tax, many employers have restructured their health benefits offerings or increased workers' deductibles and co-pays.
When the excise tax goes into effect in 2020, employers will most certainly experience higher deductibles and increased out-of-pocket costs—resulting in employers dropping group health plan coverage. This tax MUST be repealed; at the very least, significant changes must be made to avoid those financial consequences to employees. Some of those changes include eliminating HSAs and FSAs from the calculation; removing the employee portion of premium contributions; and basing inflation on the national health care inflation trend rather than the Consumer Price Index, which was 1.5 percent for 2013.
Tinkering with the tax treatment of employer-sponsored health care is not a great idea, especially since more than 175 million Americans currently enjoy this benefit. Instead of targeting employer-sponsored health benefits, lawmakers should consider other financial options.
Employers and employees should be paying attention to this critical issue. The Task Force on Health Care Reform is on the fringes of recommending some tax implications that can shatter a business, threaten individuals’ financial stability and jobs across the U.S., and put employers between a rock and a hard place!
Originally posted on the SHRM Policy Action Center Blog.
Source:
Engle, G. (2016, July 8). ACA puts employers between a rock and a hard place [Web log post]. Retrieved from https://blog.shrm.org/blog/aca-puts-employers-between-a-rock-and-a-hard-place
IRS Update on Filing ACA Forms After June 30, 2016
The IRS is giving a pass this year but encourages those who missed the deadline to file ACA Forms to still complete filing returns. See the article below from ThinkHR.com for more information.
Original Post from ThinkHR.com on July 1, 2016
If you are an applicable large employer, self-insured employer, or other health coverage provider, the deadline to electronically file ACA information returns (e.g., Forms 1094-B, 1095-B, 1094-C and 1095-C) with the IRS was June 30, 2016. The ACA Information Returns (AIR) system will remain up and running after the deadline. If you were not able to submit all required ACA information returns by June 30, 2016, you are advised to complete the filing of your returns after the deadline.
It is important to note the following:
- The AIR system will continue to accept information returns filed after June 30, 2016. In addition, you can still complete required system testing after June 30, 2016.
- If any of your transmissions or submissions was rejected by the AIR system, you have 60 days from the date of rejection to submit a replacement and have the rejected submission treated as timely filed.
- If you submitted and received “Accepted with Errors” messages, you may continue to submit corrections after June 30, 2016.
The IRS is aware that some filers are still in the process of completing their 2015 tax year filings. As is the case for other information returns, penalties may be associated with the submission of the ACA information returns for failure to timely file required returns. As the IRS has publicly stated in various forums in recent months, filers of Forms 1094-B, 1095-B, 1094-C and 1095-C that miss the June 30, 2016 due date will not generally be assessed late filing penalties under section 6721 if the reporting entity has made legitimate efforts to register with the AIR system and to file its information returns, and it continues to make such efforts and completes the process as soon as possible. In addition, consistent with existing information reporting rules, filers that are assessed penalties may still meet the criteria for a reasonable cause waiver from the penalties.
If you are not an electronic filer and you missed the May 31, 2016 paper filing deadline for ACA information returns, you should also complete the filing of your paper returns as soon as possible.
For more information, the IRS provides helpful questions and answers on the ACA reporting requirements for applicable large employers here.
Read the original article here.
Source:
Unknown (2016, July 1). IRS Update on Filing ACA Forms After June 30, 2016 [Web log post]. Retrieved from https://www.thinkhr.com/blog/hr/irs-update-on-filing-aca-forms-after-june-30-2016/
How to Avoid Penalties Under the Affordable Care Act
Original Post from SHRM.org
By: Lisa Nagele-Piazza
2016 is expected to be the most expensive year for businesses complying with the Affordable Care Act (ACA), said David Lindgren, senior manager of compliance and public affairs for Flexible Benefit Service Corporation, a benefit administrator headquartered in Rosemont, Ill.
It’s the first year for dealing with ACA reporting, which many employers will have to complete by the end of June, Lindgren said during a concurrent session at the Society for Human Resource Management 2016 Annual Conference & Exposition.
There are more than 30,000 pages of guidance about the law, but Lindgren said the ACA is fairly easy to comprehend. “Of course, many people would disagree with me,” he noted.
“It’s not necessarily easy to comply with the ACA, and it’s not financially inexpensive, but most of the rules aren’t overly complicated,” he said.
The federal agencies that regulate the ACA have said they intend to monitor all businesses for compliance. This may not be realistic, but employers should keep in mind that more auditing can be expected.
Lindgren identified 30 penalties associated with noncompliance and provided insight on how to avoid them.
Employers can choose to pay the penalties for noncompliance, but steep fines are often attached, he said. For example, market reform violations carry a penalty of $100 per participant per day, up to $500,000 for each violation.
Employees Must Receive Notices
Some noteworthy penalties to avoid are those associated with the failure to provide required notices to plan participants, including a written notice of patient protections.
Lindgren said sometimes employers aren’t clear about who has been designated to provide this notice. “A lot of times the insurance company thinks the employer provided it and the employer thinks the insurance company did,” he said. “So it’s important to double check who is in fact giving the notice.”
Participants must also be provided with a summary of benefits and coverage in a standardized format. Lindgren likened this format to a nutrition label on a can of soup.
A participant should be able to easily compare the benefits to other plans, such as a spouse’s plan, just as the nutrition facts for two cans of soup can be easily compared.
There is a standardized template for the summary of benefits and coverage on the Department of Labor website.
The requirement to provide a summary of benefits and coverage applies to medical plans, but not to dental or vision plans.
The summary should be distributed at the time of open enrollment and special enrollments related to qualifying events, as well as at the request of participants and when a material modification has been made to the plan.
Although there is no penalty attached for noncompliance, employers must also provide written notice about the health insurance marketplace to new hires within 14 days of their start date.
This applies even for organizations that don’t offer benefits and even to those employees who aren’t eligible for benefits, Lindgren said.
There are some exceptions. For example, if an employer isn’t subject to the Fair Labor Standards Act, then it doesn’t have to provide the marketplace notice.
Exceptions for Grandfathered Plans
Grandfathered plans aren’t subject to some of the requirements under the ACA. This includes plans purchased on or before March 23, 2010, that haven’t made certain material changes.
Lindgren noted that employers with grandfathered plans must provide written notice to participants notifying them that it is a grandfathered plan and describing what that means for participants.
If participants aren’t provided this information, the plan will lose its grandfathered status, Lindgren said.
HR Takes the Lead
Benefits compliance isn’t just a human resources issue anymore, but HR often takes the lead in compliance efforts, according to Lindgren.
However, other departments, such as finance, legal and information technology, are increasingly getting more involved.
Overtime Exemptions Remain Widely Misunderstood
Original Post from SHRM.org
By: Allen Smith
Even if workers’ pay is higher than the newly raised exempt salary threshold, they still might not be exempt. That’s because the new overtime rule didn’t add any requirements to the duties tests but left the existing duties tests in place. And the tests are widely misunderstood, particularly those for the administrative exemption, according to Robert Boonin, an attorney with Dykema in Detroit and a speaker at the Society for Human Resource Management 2016 Annual Conference & Exposition.
“I’m afraid you may be OD’d on overtime,” Boonin said at his presentation’s outset. But he reminded attendees that the salary level for the white-collar exemption—$455 a week, or $23,660 per year, under the 2004 overtime rule—will be raised to $913 a week, or $47,476 per year, effective Dec. 1 and walked them through potential traps in classifying workers as exempt.
Who’s In, Who’s Out
Paralegals are almost never exempt under the administrative exemption, Boonin remarked, and the same is true for help desk employees and administrative assistants. Other positions that probably don’t fit within the exemption include mortgage loan originators, customer service representatives and insurance adjustors.
To fall under the administrative exemption, an employee must have the primary duty of performing office or nonmanual work related to the employer’s management or general business operations.
He noted that areas likely to be related to management and general operations include:
- Accounting.
- Advertising.
- Auditing.
- Employee benefits.
- Finance.
- Government relations.
- Human resource management.
- Insurance.
- Labor relations.
- Marketing.
- Procurement.
- Public relations.
- Purchasing.
- Quality control.
- Research.
- Safety and health.
- Tax.
- Training and development.
That’s a wide swath of operations.
But, most important, the employee must exercise “independent judgment and discretion” on “matters of significance” to fit within this exemption, he emphasized.
An employee who falls under the exemption should not merely follow marching orders. So, while an HR coordinator who processes applications wouldn’t fit within the exemption, an HR director who oversees an HR department probably would.
‘Independent Judgment and Discretion’
When determining whether someone has discretion and independent judgment, Boonin said, HR should consider whether the employee:
- Has the authority to formulate, affect, interpret, or implement management policies or operating practices.
- Carries out major assignments in conducting the operations of the enterprise.
- Performs work that affects business operations to a substantial degree, even if assignments are related to operation of a particular segment of the business.
- Has authority to commit the employer in matters that have significant financial impact.
- Has authority to waive or deviate from established policies and procedures without prior approval.
- Has authority to negotiate and bind the institution on significant matters.
- Provides consultation or expert advice to management.
- Plans long- or short-term business objectives.
- Investigates and resolves matters of significance on behalf of management.
- Represents the institution in handling complaints, arbitrating disputes or resolving grievances.
Professional Exemption
The professional employee exemption is more straightforward. The primary duties must be in an area requiring specialized higher education and the consistent exercise of discretion and judgment, he said. These areas include:
- Engineering.
- Law.
- Medicine.
- Psychology.
- Science.
- Social work.
- Teaching.
Positions that may not fit within this exemption include accountants, stockbrokers and entry-level engineers.
While the salary threshold in general must be satisfied for white-collar employees to be exempt, the threshold does not apply to:
- Doctors.
- Lawyers.
- Teachers.
*Employees in highly skilled computer-related occupations, such as programmers and network designers who earn at least $27.63 per hour.
Other Exemptions
In addition to the administrative and professional exemptions, the executive exemption is available to employees who supervise at least two full-time workers and have the authority to hire and fire, in addition to primarily managing the enterprise, a department or subdivision.
Boonin noted that the outside sales exemption is for those whose primary duty is to sell services to customers at their place of business. There are no salary or fee requirements for exempt outside sales employees.
Special rules apply to highly compensated employees, who don’t fit within the white-collar exemptions. They perform a combination of nonexempt work (what the Department of Labor now refers to as “overtime-eligible” work) and exempt work, plus are high earners.
Take a sales director. She might not fit within the administrative exemption if the vice president of sales calls all the shots. She also wouldn’t fall under the professional exemption. Nor would she fit within the executive exemption if she supervised two full-time employees but didn’t have the authority to hire or fire them; again, the vice president might reserve that function for herself.
The sales director still would be exempt if her salary is—as of Dec. 1—at least $134,004 because she performs at least one of the duties in the executive, administrative or professional employee exemptions: supervising two full-time employees.
9 Tips for Closing the Gender Pay Gap
Original Post from SHRM.org
By: Jonathan A. Segal
Everyone knows there is a gender gap in how employees are paid, though estimates vary as to how large it is. But compensation inequity of any size does more than expose an organization to litigation; it can cause disengagement and lower productivity, which can translate into lower profits.
It can also push talented employees out the door in search of greener pastures (and higher paychecks). In fact, often the smartest and most marketable employees are the first to leave. Bottom line: The gender gap is everyone’s problem.
So let’s begin with the assumption that your organization is smart and wants to eliminate this business inhibitor and legal wrong. What do you do?
1. Lawyer Up on Data Collection
Sometimes HR professionals will collect data to demonstrate that a problem exists. I understand why, but this can be dangerous.
The information likely will be discoverable, and your good-faith efforts could be used against you. If you need data to break through denial at your company, you may want to work with your employment lawyer to collect it under attorney-client privilege. Then have it delivered in the form of legal advice.
Even then, the underlying data may not be privileged if, for example, it is gathered from existing nonprivileged documents and information. However, data compilation and analysis done by—or at the direction of—counsel might still be protected from disclosure by the attorney-client privilege and/or the work product doctrine.
The bottom line is that the scope of the attorney-client privilege is deceptively complex, so give careful and thoughtful consideration to how you work with your employer’s lawyer to maximize the likelihood that the privilege will apply.
One thing is clear: Simply copying your employer’s attorney on an e-mail does not make the information within the e-mail privileged; it simply makes the attorney a witness to it.
2. Analyze Positions Qualitatively
Once you’ve documented pay gaps, don’t automatically assume they are all attributable to gender.
There may be totally legitimate business reasons for wage differences. For example, someone who took four years off to have and raise a child might earn less than someone who did not spend time away from work and who has received regular raises over that time span.
So, while quantitative data provides a starting point, a qualitative assessment of the relevant factors at play—one that ideally is also done under attorney-client privilege—is needed to determine if changes are in order.
3. Allow Negotiation …
Ellen Pao, former CEO of Reddit, tried to ban salary negotiations at her company based on the theory that allowing such bargaining inherently benefited men. Let me count the reasons I disagree with this tactic. Actually, I’ll stop at three:
First, it reinforces the stereotype that women aren’t capable negotiators.
Second, it takes away a woman’s (or a man’s) power to play a role in determining her (or his) own pay.
Third, whether and how someone negotiates may be relevant to whether you hire them. It is better than a behavioral question—it is a behavioral simulation.
4. … But Reconsider Asking About Salary History
When we ask about prior salary, we may be unwittingly perpetuating the gender gap created by prior employers. If someone was paid too little at her previous employer, the low part of your range may result in a material increase in compensation but still be less than the candidate deserves.
Consider eliminating the salary history question from your applications. After all, what does prior compensation really have to do with what someone should earn for a new opportunity? Ask only if it is truly relevant to the job—and document why you believe it is.
5. Create Pay Ranges But Recognize Exceptions
Establish pay ranges for positions to maximize consistency, and develop criteria for how you will place a new hire or promotion in the range.
But also realize that there will be times when exceptions are necessary. Develop a procedure to determine when and why you should depart from the norm, and conduct periodic audits to make sure that exceptions are not made only for men.
6. Consider Access Issues
Pay is often linked to performance. At certain levels, I think that works (at least to some degree). But I firmly believe that you cannot perform as well as your peers if you don’t have access to the same opportunities that they do. In my view, this is where many employers miss the mark, big time.
I hate unnecessary bureaucracy as much as anyone, but if there is no structure as to how work is distributed, the plum assignments too often may go to someone “just like” the manager. While slights like this are not intentional, they are often very real. Are the highly desired assignments typically meted out among the guys while playing golf or drinking at the neighborhood watering hole? If so, the boys’ club may be rearing its ugly head in a way that perpetuates the access gap and, with that, the gender gap.
Access to key assignments, customers, clients and information is essential to successful performance and the resulting link to higher pay. Of course, managers must have some discretion, but there should also be guardrails in place so that access issues don’t translate into unequal opportunity.
7. Appraise Performance Appraisals
Gender bias is often evident in performance appraisals, which are linked to pay. Two examples:
- A man is refreshingly assertive, while a woman engaging in the same behavior is labeled with the scarlet “B.”
- Or, a new twist on the double standard: A woman and a man are both involved in equally unacceptable behavior, but he is described as having engaged in “abrasive conduct,” while she is simply labeled “abrasive.” It’s a subtle but important difference—between a behavior that can be changed and a fixed character trait.
Train your leaders on these and other potential biases.
8. Be Aware of Persistent Biases and Their Effects
Yes, some of what an employee is paid is a result of his or her ability to negotiate. So workers have a major role to play, too: An employee should not complain with impunity about making less than others if he or she did not ask for more or apologizes for having done so.
Unfortunately, ambition is not always viewed as laudably in a woman as it is in a man. Sheryl Sandberg makes that point in Lean In: Women, Work, and the Will to Lead (Knopf, 2013) multiple times. Here is the sad but persistent reality: A woman may have to decide between conforming to the societally accepted stereotype of being nice (and making less money) or being liked less because she asks for what she has earned.
9. Train Your Leaders
Of course, a woman who leans in should not have to choose between being well-liked or well-paid, so educate your leaders about the unconscious biases that can come into play in cases where women negotiate no differently from men. Once people are made aware of their own prejudice, they are less likely to unconsciously engage in it.
Inevitably, some folks on the leadership team will deny that the bias exists at all because they have not personally experienced it. Let me conclude by saying this: I have never experienced labor pains. But I would be foolish to deny their existence based just on my life experience. You can take the analogy from there.
Jonathan A. Segal is a partner at Duane Morris in Philadelphia and New York City. Follow him on Twitter @Jonathan_HR_Law.
- See more at: https://shrm.org/publications/hrmagazine/editorialcontent/2016/0616/pages/0616-gender-pay-gap.aspx#sthash.U3Uaj98m.dpuf
Are You Ready for the Marketplace Notices?
Original Post from ThinkHR.com
By: Laura Kerekes
Under the Affordable Care Act (ACA), each Health Insurance Exchange (Marketplace) must notify employers when they have an employee who has received a government subsidy to enroll in a health plan through the Marketplace. These notices will begin being sent to employers in the coming weeks and months, either individually or in batches. Because the notice procedure is being phased in, you may or may not receive notices, even if you have employees who received subsidies through a Marketplace. Here’s what you need to know.
Reason for Notice
These notices, also called 1411 Certifications in reference to the pertinent section of the ACA, will be sent to employers as part of the government’s verification efforts regarding persons who received Marketplace subsidies for individual health insurance. Marketplaces want to confirm whether the individual was eligible for, or enrolled in, an employer’s health plan since those facts can affect someone’s eligibility for subsidies.
You may receive a notice (similar to the sample found here) for each employee that received a subsidy to enroll in insurance through a Marketplace. The notice only informs you that the employee was granted a subsidy — it is not a notification that you have been assessed any penalty. Under the ACA’s play or pay rules, penalties may be assessed later by the Internal Revenue Service to applicable large employers for failing to offer full-time employees affordable minimum value coverage; however, play or pay penalties, and notice of them, are a separate process entirely.
What You Should Do
- Even if you do not believe that any of your employees obtained individual coverage through a Marketplace, be on the lookout for these notices because you have 90 days from the date of the notice to file an appeal, if necessary. Notices may go to a subsidiary instead of the parent company or to a particular worksite instead of the employer’s main office, depending on the information the employee provided to the Marketplace. Alert all departments and worksites to watch for mail in envelops from a government agency or insurance Marketplace.
- Important:Keep these notices confidential because employers are prohibited by law from discriminating or retaliating against employees who may receive subsidies. Consider segregating functions so staff involved in reviewing notices is separate from staff involved in employment or benefit plan decisions.
- Establish your audit process for reviewing any notices you may receive and for filing appeals when appropriate. Confirm that the information is correct based on your employment and payroll records. If you are an applicable large employer subject to the ACA’s play or pay rules, you also should check if the employee was a full-time employee and, if so, whether you had offered affordable minimum value coverage to the employee. Read more about the notice and appeal process here.
- File an appeal within 90 days of receipt of the notice if any of the information is incorrect. To do this, be sure to retain the notice and follow the directions for appeal. Remember that these notices will not advise you of any penalties on large employers, so appeals at this stage are to correct any mistakes in employment information. In addition:
- If you are a small employer and not subject to the ACA play or pay rules, you are not impacted directly but your appeal may alert the Marketplace that the individual was enrolled in your group health plan and not eligible for subsidies.
- If you are an applicable large employer who is subject to the ACA’s play or pay rules, you should be proactive in appealing the Marketplace’s subsidy determination if any information is incorrect. (An applicable large employer generally is one that employed an average of 50 or more full-time and full-time-equivalent employees in the prior calendar year. Related employers in a controlled group are counted together.) Although Marketplaces cannot access play or pay penalties, your appeal may help establish the facts and head off later penalty action by the IRS.
You may not receive Marketplace notices, but if you do, be prepared, review them thoroughly, and appeal incorrect information quickly.
DOL Overtime Rule Will Impact Hospitality Industry
Originally Posted by SHRM.org
By: Allen Smith
The hospitality industry will be hit hard by the Department of Labor’s updates to the overtime rule implementing the Fair Labor Standards Act (FLSA), experts say. With high overhead costs and a low-profit margin, hotels and restaurants typically don’t have enough money in reserve to give employees big raises to preserve their exempt status or to pay many hours of overtime if employees are eligible.
As a result, hospitality employers will need to explore alternative compensation models, schedules and staffing options to try to mitigate costs, according to Ryan Glasgow, an attorney with Hunton & Williams in Richmond, Va.
Some choices will be simple, he noted. For employees with relatively high salaries who work long hours, the logical choice is to increase their salaries, as the minimum increase in salary likely will be less than the employer would have to pay in substantial overtime hours. As for employees with low salaries who don’t work much overtime, it makes sense to convert them to nonexempt and pay overtime for the few overtime hours they might work.
“For all other employees, the decision will be much more difficult and will require a lot of strategic planning and analysis,” Glasgow said. “For example, in certain circumstances, it may be feasible for the employer to combine two exempt positions into one position so that the cost of increasing the salary for the remaining one employee is offset by the cost-savings from the elimination of the other employee’s position.”
He added that it may be better for the employer to convert a position to nonexempt and hire more employees to perform the work so that none of the employees work overtime. “Similarly, employers should evaluate each impacted position to determine whether there are unnecessary and/or inefficient tasks that can be eliminated or given to another employee so that the position requires fewer hours of work, thus lowering the impact of paying overtime,” he noted.
Domino Effect
Be aware of the potential domino effect when an employee’s salary is increased above the new salary level. The employee and the employee’s supervisor may suddenly be making similar salaries. Supervisors may ask for an increase as well, leading to salary increases up the organizational chart, Glasgow said.
Bonus and commission plans will have to be re-evaluated since there may be overtime pay consequences if employees who have been converted to nonexempt are paid bonuses or commissions, noted Robert Boonin, an attorney with Dykema in Detroit and Ann Arbor, Mich., and immediate past chair of the Wage and Hour Defense Institute, a network of wage and hour lawyers.
Rule’s Potential Winners
Salaried workers earning less than $913 a week or $47,476 annually and who regularly work more than 40 hours per week stand to gain from the overtime rule, said Wendy Stryker, an attorney with Frankfurt Kurnit Klein & Selz in New York City. These workers will have their salaries raised above the new threshold, be paid overtime or have their hours reduced to a 40-hour workweek, she said. These employees include entry and midlevel professionals, such as chefs, sommeliers, and hotel or restaurant managers and assistant managers, she added.
The hospitality industry has a lot of employees earning in this range, according to Stryker. She noted that the average U.S. wage for chefs, head cooks and pastry chefs is $45,920. For bakers, the average U.S. wage is lower, at $26,270, Stryker noted.
While workers may benefit from the overtime rule, Michael Layman, vice president, regulatory affairs for the International Franchise Association in Washington, D.C., said the overtime rule will hit the hospitality industry particularly hard. Its employers “disproportionately face unpredictable season- or weather-dependent schedules and variable labor demands, which makes tracking hours and managing overtime costs a significant challenge,” he said.
“Given the need for onsite guest services, employers in the hospitality industry may have less flexibility than other employers to automate or offshore operations,” said Nancy Vary, director of the compliance consulting center at Xerox HR Services in New York City.
However, Carolyn Richmond, an attorney with Fox Rothschild in New York City, said, “I think we will see the live reservationist all but disappear as reliance on [online booking apps] OpenTable, Resy and the others grows.” She added, “Owners are looking at more and more automation—programs that monitor and control labor costs and even how to replace certain employees.”
Other Significantly Affected Industries
Hospitality isn’t the only industry to feel the brunt of the new overtime rule.
“The construction and retail industries will be impacted significantly because, like the hospitality industry, they have unusually high concentrations of low-salaried managers,” Glasgow said. He also expected large research and educational hospitals to be uniquely impacted because they have many low-salaried professionals.
“Any industry that has traditionally offered low pay to its skilled workers is likely to be hard-hit by the new overtime rules,” Stryker said. “In New York City, this is likely to be the creative industries such as advertising and film/television production, where hours are traditionally long, and the work product cannot necessarily be created on a 40-hour-per-week schedule.”
The point of the rule isn’t to benefit employers, though. “The new overtime rules were created to benefit employees,” Stryker said. “As the president noted when he directed the Department of Labor to update the relevant regulations, the FLSA’s overtime protections “are a linchpin of the middle class, and the failure to keep the salary level requirement for the white-collar exemption up to date has left millions of low-paid salaried workers without this basic protection.”
That said, Richmond noted that “While the Department of Labor hopes and expects these changes will lead to increased wages through overtime, I don’t expect that to be the case in [the hospitality] industry. Payroll has already risen dramatically with minimum wage increases and resulting wage compression, and owners will spend more time looking at controlling overtime.”
Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.
- See more at: https://shrm.org/legalissues/federalresources/pages/hospitality-industry-weighs-options-in-wake-of-overtime-rule.aspx#sthash.D3BGAwvR.dpuf
The Supreme Court gives employee's more room to sue you
The Supreme Court’s latest ruling isn’t going to make a lot of employers happy.
The High Court just made it easier for employees to sue, claiming they were constructively discharged.
Constructive discharge occurs when an employer makes a person’s working conditions so intolerable — via some underhanded actions, like harassment or discrimination — that the person felt compelled to resign.
Federal law says private sector employees must file a charge of harassment, discrimination or constructive discharge with the EEOC within 180 days from the day the illegal act took place if they want to press charges in federal court. The deadline is extended to 300 calendar days if a state or local agency enforces a law that prohibits employment discrimination or harassment on the same basis.
Federal employees have just 45 days to contact an Equal Employment Opportunity (EEO) counselor to be able to file a charge.
The real issue
The question that was posed to the Supreme Court: In constructive discharge cases, what constitutes the last act of discrimination or harassment — i.e., when does the statute of limitations clock start running?
The High Court’s answer: The date the employee resigns (even if it’s not the person’s last day of work).
What happened?
The issue came up in a case in which former postal worker Marvin Green sued the U.S. Postal Service (USPS), claiming constructive discharge.
In late 2009, Green complained to USPS management that he’d been denied a promotion because he was African-American. From there, his relationship with the USPS entered a downward spiral that eventually led to his supervisors accusing him of deliberately delaying the mail (a federal offense).
Then, on Dec. 16, 2009, both parties signed an agreement in which the USPS agreed not to pursue criminal charges in exchange for Green either retiring or accepting a position in a remote location for far less pay. Green elected to retire and submitted his resignation on Feb. 9, 2010 (effective March 31).
On March 22, Green contacted an EEO counselor and alleged that he was constructively discharged. He then filed suit in federal district court, which dismissed his charges on the basis that it was untimely because he failed to contact an EEO counselor within 45 days of Dec. 16, the date he signed the agreement.
Green appealed, and the case made it all the way to the Supreme Court, which ruled in Green’s favor when it came to the start of the 45-day limitations period.
It said the period begins on the date an employee resigns.
The reasoning
The court said in cases in which an employee claims to have been fired for discriminatory reasons, the matter alleged to be discriminatory includes the discharge itself. Therefore, the 45-day limitations period begins when the employee is discharged.
The justices applied that same line of thinking to constructive discharge cases — saying that the matter alleged to be discriminatory includes the employee’s resignation.
Two reasons it did this:
- It said a resignation is part of the elements of a constructive discharge claim. So without a resignation, the claim can’t even exist, and
- It said requiring that a complaint be filed before resignation occurs would ignore that an employee may not be in a position to leave his job immediately.
Far-reaching effect
While this case dealt with a federal employee’s obligation to report to an EEO counselor within 45 days, it indicated that lower courts could apply the same reasoning to the 180/300-day periods imposed upon private sector employees.
One could even surmise that the ruling could also apply to state anti-discrimination and anti-harassment laws as well.
Cite: Green v. Brennan (Postmaster General)
Originally Posted by HRMorning.com
5 Things Employers Need to Know About Overtime Rules
Original post benefitsnews.com
With compensation taking up the biggest slice of the benefits pie, employers are paying close attention to the Department of Labor’s proposed changes to the overtime rules – expected to be released as early as this month – under the Fair Labor Standards Act.
The proposed rules bump the salary threshold for overtime from $23,600/year to $50,440/year. If the final rules stay the same as the proposed rules, employees currently working in salaried positions who make less than $50,440 will now be entitled to overtime pay. That’s a 113% increase, which is “incredibly dramatic,” says Lisa Horn, spokesperson for the Partnership to Protect Workplace Opportunity.
“Not only does it raise it that high, but what many have failed to hone in on is the fact that this is an annual increase,” she adds. “That’s quite impactful on top of that huge initial jump in the salary increase.”
Horn says some research predicts that because of that annual increase, which is tied to the 40th percentile of all full-time salaried workers in the country, the minimum salary threshold for overtime could rise as high as $90,000 within five to seven years.
It’s possible the final rules could include a lower salary threshold – Horn says she’s heard it could be $47,000/year instead of $50,440 – but even if that’s the case, it will still mean a big jump. Employers will have to decide whether to increase workers’ salaries to make them exempt from overtime or reclassify them as non-exempt.
And since many employers have different benefit structures for hourly and salaried workers, if some employees need to be reclassified as non-exempt they could see their benefits affected.
Moreover, in the eyes of employees, being reclassified as non-exempt is “seen as a demotion,” says Horn, who also works as SHRM’s director of Congressional affairs. “Because you’re continually trying to climb most employees from that non-exempt hourly status to the more professional exempt status.”
Here are five things employers need to know about the proposed rules from the PPWO, a group of more than 70 employer organizations and companies created to respond to the overtime rule changes:
1. This proposal represents a 113% immediate increase plus an annual increase. The proposed overtime rule would initially raise the salary threshold defining which employees must be paid overtime by 113%, from $23,600 to $50,440. In addition, the DOL has proposed increasing this minimum salary on an annual basis.
2. The proposal will impact millions of workers and cost billions to businesses.According to the DOL, the rule will affect over 10 million workers – workers who may see their workplace flexibility diminished or a loss in other benefits they rely on, says the PPWO. The National Retail Federation estimates retail and restaurant businesses will see an increase of more than $8.4 billion per year in costs.
3. The implementation window is very short. As proposed, the implementation timeline for this rule is only 60 days, which will place a massive burden on HR departments and organizations scrambling to comply, according to the PPWO. “That 60 days is just completely unworkable from an organization’s standpoint and having to implement these changes in such a short time frame,” says Horn. “These are, for some organizations, really massive changes.”
4. Many employees will need to be demoted. This change could force employers to reclassify professional employees from salaried to hourly – including many managers and those with advanced degrees – resulting in a loss in benefits, bonuses, and flexibility, and a reduction in professional opportunities.
5. This is a blanket increase that disproportionally impacts lower cost areas. A one-size-fits-all approach is inappropriate for the different industries and various regions of the country. While the threshold of $50,440 may be reasonable in New York City, a comparable cost of living in Birmingham, Alabama, for example, is only about $21,000 – making the threshold unattainable and unrealistic for many small businesses in lower cost of living areas, according to the PPWO.