By Attorney Kelly Jesson
On September 22, 2020, the U.S. Department of Labor (“DOL”) issued a proposed rule regarding classifying workers as employees versus independent contractors. As we’ve written before, failing to correctly classify workers may result in employers paying thousands of dollars in fines, taxes, and back wages. The Fair Labor Standards Act (“FLSA”) requires that employers pay their employees minimum wage and overtime, but these rules do not apply to independent contractors.
The DOL has proposed this rule because of conflicting court cases across the country, in order to create the “sole and authoritative interpretation of independent contractor status under the FLSA.” The proposed rule creates an “economic realities test” to determine whether a worker is an employee or an independent contractor. If the worker is economically dependent on the employer for work, he/she should be classified as an employee. If a worker is considered to be in business for him or herself, that worker should be classified as an independent contractor. In the past, several factors have been used to aid in court’s determinations as to whether or not a worker is economically dependent on the employer, but with this proposed rule, the DOL specifically notes that there are two core factors that are to be given more weight than others:
1. The nature and degree of the worker’s control over the work: If the worker, and not the employer, exercises substantial control over key aspects of the work, such as by setting his or her own work schedule, working with little or no supervision, and being able to work for others, including a potential employer’s competitors, they may be classified as an independent contractor.
2. The worker’s opportunity for profit or loss: If the worker has an opportunity to earn profits or incur losses based on his or her personal initiative, managerial skills, or business acumen (including investments in money and also equipment, tools, and people), the worker may be classified as an independent contractor.
The text of the proposed rule references “entrepreneurs” multiple times. In reviewing the proposed rule, it is clear that the DOL considers independent contractors to be workers who work for themselves. “[T]he ability to control one’s work and to earn profits and risk losses strikes at the core of what it means to be an entrepreneurial independent contractor, as opposed to a ‘wage earner’ employee.”
The proposed rule has been submitted for public comments and, given that an election is happening in a month, it is unlikely that the proposed rule will become law in the next few months. But we will be keeping an eye on it.
If you’re considering hiring your first worker, or have questions about your existing workers, please give Jesson & Rains a call!
By Attorney Kelly Rains Jesson
Back in July of 2016, we wrote about the Department of Labor’s dramatic new proposed overtime rule, which frightened a lot of business owners. A few months later, a judge invalidated the law, and the 2004 law has been in place ever since.
The new law is back, but a little less dramatic.
Everyone is somewhat familiar with the law that requires overtime to be paid to employees who work over 40 hours per week. However, the law exempts any employee employed in a bona fide executive, administrative, or professional capacity. This exemption is premised on the belief that these types of salaried employees generally earn higher salaries and enjoy other benefits.
The change in the 2020 law applies to the exception to this exemption – if a person is a salaried employee and employed in an executive, administrative, or professional capacity, they will still be entitled to overtime under federal law if they earn a “low” salary. Currently, an employee in this category who earns less than $455/week or $23,660 is entitled to overtime if they work more than 40 hours per week.
Starting January 1, 2020, these figures will increase. If an employee in this category earns less than $684 per week (equivalent to $35,568 per year for a full-year worker), they will be entitled to overtime if they work over 40 hours per week.
If you are a business owner and employ employees who may be affected by the change in the new law, we encourage you to contact an attorney or other human resource professional to ensure you comply with the law. There are other changes in the overtime law that may affect you and your business. More information can be found here.
By Attorney Edward Jesson
Running a business can be tricky! Having employees can be even trickier! We are frequently asked about minimum wage and overtime.
The federal law that controls employee pay is the Fair Labor Standards Act (FLSA). The FLSA sets the minimum standards that the states must comply with—but there is nothing stopping the individual states from setting standards that exceed those outlined in the FLSA. For example, while the federal minimum wage is $7.25 per hour, the minimum wage in Colorado is currently set at $11.10 per hour. If you are an employer in Colorado, you have to pay $11.10 per hour regardless of the federal law. Conversely, no state can set a minimum wage below the federal amount. In North Carolina, the minimum wage is $7.25.
Does FLSA apply to your business? Probably, yes. Generally, the FLSA applies to all businesses that make over $500,000.00 per year gross or are engaged in interstate commerce, which is a very broad term. Most businesses engage in interstate commerce. The FLSA can also apply to day workers, housekeepers, cooks, full-time babysitters and other “domestic service workers” under certain circumstances. If you believe that the FLSA does not apply to your business, it would be a good idea to check with a local attorney to ensure that your analysis is correct.
Most people know that overtime is calculated at a rate of at least 1.5 times the regular hourly rate. That 1.5 times the hourly rate kicks in for any hours worked over 40 in a single workweek. It’s important to note that the FLSA looks at workweeks and does not allow an employer to average the amount out over a longer period. For example, if an employee works 45 hours one week and 35 the next, the employer cannot average that out to 40 hours per week over those two weeks. The employee will be entitled to 5 hours overtime for the first week, and no overtime for the second week.
Even if the FLSA does apply to your business, there are certain exemptions to the law. For example, executive, administrative, and professional employees who earn salaries may be exempt from both minimum wage and overtime pay requirements, so long as that salary is equal to at least $455 per week. Similarly, outside sales employees may also be exempt from FLSA requirements. Employees of movie theaters are exempt from the overtime requirement but must still make minimum wage.
Even commissioned employees are entitled to minimum wage (unless they are considered exempt). For example, if a commissioned employee works 30 hours, at the federal minimum wage, they would be entitled to at least $217.50. If the commissions earned for those 30 hours worked totals less than $217.50, then it is the employer’s responsibility to make up the short fall. There are a number of exceptions to this rule.
Tipped employees must be paid at least $2.13 per hour in direct payment from the employer. Tipped employees are entitled to at least minimum wage, so if their direct pay and tips for a workweek do not equal what they should be entitled to at the prevailing minimum wage, it is the employer’s responsibility to make up that short fall. Similarly, tipped employees are entitled to overtime pay if they work more than 40 hours in a single workweek. The calculations for a tipped employee’s overtime rate are more complex than for a regular hourly rate employee.
As you can see, the exceptions to the FLSA are varied, and there is no “one size fits all” answer. It is advisable to consult with an attorney licensed in your state or a human resource professional to ensure that your employees are being paid the correct amount based on the particular circumstances of your employees and your business. If you have any questions regarding how you are supposed to pay your employees, please give Jesson & Rains a call.
First, congratulations!! Below is a North Carolina-specific check list.
If you’re ready to hire your first employee, give Jesson & Rains a call now to ensure you are in compliance with the myriad of laws you must consider.
We are frequently asked what is the difference between an independent contractor and an employee. Hiring independent contractors is often the cheaper choice for employers as the employer saves on taxes and other administrative costs that are involved with hiring and firing traditional W2 employees. However, mistakenly (or intentionally) classifying employees as independent contractors can cost employers thousands of dollars in fines, taxes, and back wages, as well as cost the government millions of dollars in taxes. Several years ago, the News and Observer wrote an article about contractors in the construction industry who were intentionally misclassifying those who should have been employees as independent contractors in order to save money. The article found that the misclassification of employees cost the state of North Carolina $467 million in lost tax revenue that should have been paid by employers; and that was just from a sampling of federally funded projects in North Carolina—ignoring the vast amount of private construction in the State.
On August 11, 2017, Governor Cooper signed into law the Employee Fair Classification Act (S.B. 407). Many in the construction industry have supported this move, feeling that the misclassification of workers by their less scrupulous competitors was making it difficult for them to compete. Companies that misclassify employees and independent contractors can save more than 20% on their labor costs.
The new act provides a way for the state to receive complaints that employees are being misclassified as independent contractors by creating the Employee Classification Division within the North Carolina Industrial Commission. The Employee Classifications Section’s website states that:
Upon receiving the complaint for employee misclassification the Director will provide this information to the North Carolina Department of Labor, North Carolina Industrial Commission – Compliance and Fraud Investigative Division, North Carolina Department of Commerce - Division of Employment Security, and North Carolina Department of Revenue where each separate agency shall conduct independent investigations to determine whether violations of their operating statutes has occurred. If determined there has been a violation of any operating agency statute, each agency will ensure the necessary enforcement actions under the respective statutes.
As such, should a complaint be made, independent investigations will be made into the company being complained of by several different North Carolina governmental agencies and employers could be facing multiple fines from multiple state agencies. Also, employers are now required to post notices including the following information:
To avoid any issues with the Employee Classification Section, employers must ensure that they are correctly classifying employees as either employees or independent contractors. While the classification is determined case by case and depends a great deal on the specific facts surrounding each individual’s employment, here are some basic considerations:
That is not an exhaustive list, and no one question will determine whether a worker should be considered an employee or an independent contractor. However, if in answering those questions, you are finding that you have a lot of control over how the worker performs his or her work, then it is likely that they should be classified as an employee and not an independent contractor.
If you find yourself questioning whether your worker should be classified as an employee or an independent contractor, or if you find yourself being investigated by the Employee Classification Section, please give Jesson & Rains a call to assist you in the matter.
What other legal requirements do you have other than filing the paperwork with the Secretary of State’s office and getting a tax ID number? As we mentioned in a previous article, vendors are going to see in the public records that you’ve started a new business and are going to send you offers in the mail to purchase items like signs that you “legally are required to display or you may be forced to pay federal fines.” As we discussed, this is sometimes not the case.
What about taxes? This is a new business owner’s main concern. First, find a good CPA. They’re the tax experts, not us. If your business consists of selling a service and you have no employees, you likely only have to concern yourself with estimated quarterly income tax. If you’re selling a product, you may have to pay sales tax. If you have at least one employee, you will need to pay FICA Tax (social security and medicare deduction) and submit additional tax paperwork every quarter. You should register your business online with the state at http://www.dornc.com/electronic/registration/index.html. You should also fill out this application because most businesses with one employee have to pay unemployment tax, too. https://des.nc.gov/des. If you have a brick and mortar store, you’ll likely have to pay business property taxes (just personal property tax if it is a leased store).
When you hire an employee, we strongly recommend you consult with an attorney or a professional out-sourced human resources company. There are all sorts of rules and regulations and compliance issues when it comes to hiring an employee. You need to know about overtime, meal breaks, minimum wage, etc. Once you get up to three employees, you’ll need to start carrying worker’s compensation insurance.
The above information is all general -- depending on the type of business, there may need to be regulatory considerations such as licensing and permitting. For example, we have clients who are professionals who had to get approval for professional licensing boards before opening their business. If you are opening a restaurant that serves alcohol, you have to get your ABC permit.
The attorneys at Jesson & Rains can assist you in navigating the business start-up process. As business owners ourselves, we’ve been there!
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