The Department of Labor (DOL) has recently reassessed their interpretation of the independent contractor classification with an emphasis on a new set of criteria, and in order to ensure continued compliance with the Fair Labor Standards Act (FLSA), small businesses that have classified workers as independent contractors will now need to review and possibly reassess whether or not those classifications are still valid.
According to the Society for Human Resource Management (SHRM), the DOL previously relied on a number of tests to determine how much control an employer had over an individual’s work; now, the DOL has deemphasized that test in favor of the “economic realities” test, which instead determines how economically dependent the worker is on the employer. According to attorney Allan Bloom, “Businesses worried about staying under the DOL radar on this issue should make sure that they are doing business with established independent service providers.”
When reassessing the status of your workers currently classified as independent contractors, it is now vitally important to carefully consider how much control and even influence your business has over each worker. Independent contractors should be “independent” in regards to how and when work is performed, and a contractor must have the freedom to work for others.
The DOL now requires employers to review the following six factors:
- The extent to which the work performed is an integral part of the employer’s business.
- The worker’s opportunity for profit or loss depending on his or managerial skill.
- The extent of the relative investments of the employer and the worker.
- Whether the work performed requires special skills and initiative.
- The permanency of the relationship.
- The degree of control exercised or retained by the employer.
If you are unsure whether or not your worker classifications are still valid and in compliance with the FLSA, one of our HR professionals will be happy to provide further guidance and advisement. Feel free to contact us for more information!
On June 30th, President Obama announced that the Department of Labor had developed a proposal for extending overtime pay to millions of American workers. Exempt workers previously only qualified for overtime if they earned $455 a week/$23,660 annually or less. Under this new proposal, that threshold will be raised to $970 a week/$50,440 annually or less. The White House and the Secretary of Labor believe this will extend overtime pay to almost 5 million more workers in the United States.
Unless you do business within certain industries that fall under specialized pay laws, your employees are likely classified as either non-exempt or exempt under the Fair Labor Standards Act (FLSA). Non-exempt employees must be paid for overtime, while exempt employees usually do not if they earn more than the established pay threshold. Exempt employees usually fall into three categories: administrative, executive and professional. If your employees don’t fall into at least one of these categories, they are non-exempt and, if eligible, must be paid overtime. Many managers on the front lines of small businesses are often classified as exempt under the executive classification, as managing other employees is documented as their primary duty and therefore have not been eligible for overtime.
What does this mean for your business? In simple terms, it means that under this proposal, you may need to begin paying overtime to exempt workers earning less than $970 a week. In more complex terms, it means that you may need to begin curtailing the work hours of exempt employees in order to keep their work hours below 40 hours a week. Some companies and businesses are already developing plans to limit after hours work activities, while some business experts predict that businesses may hire more employees in order to fill the extended hours that were worked by the previously exempt employees.
If you require further information or guidance on this new proposal, please contact us and schedule a meeting with one of our HR experts! We will be happy to help ensure that your employees are correctly classified and you have the proper programs and policies in place to manage your employee scheduling and workload.
All employers operating in the state of Colorado must be familiar with the Wage Protection Act of 2014. This act, signed into law on May 29th, 2014, amends and greatly expands Colorado's existing Wage Payment Act, which covers paydays, deductions from pay and payments of wages on separation from employment for almost all private employees in the state, with no exemption for a minimum number of employees.
As of January 1st, terminated employees or the Division of Labor now have two full years to file a written demand for unpaid wages and compensation, which adds 22 additional months to the previous 60-day deadline for an employee to file a complaint with either the division or a court, and penalties will accrue from the date of the violation. The amended act also empowers the division to adjudicate claims and impose fines and penalties of $7,500 or less for wages earned since January 1st. The division can now fine employers for failing to respond to a division notice, and failure or refusal to testify at a hearing or produce records in response to a division subpoena will be a misdemeanor, punishable by a fine, a short jail sentence, or both. The division is also now empowered to grant fees to attorneys representing employees.
Employers in the state are now required to maintain records of every employee's pay statements for at least three years after payment of wages, and these records must be available upon request of the division. Additionally, employers must now mail final wages to an employee's last known address if they have not received them within 60 days.