Horizon Point Consulting

Author: Lorrie Coffey

  • Are You Misclassifying Employees?

    Are You Misclassifying Employees?

    The Supreme Court recently agreed to hear a case that could have a big impact on the Fair Labor Standards Act (FLSA) and the classification of employees as exempt versus non-exempt. The case of Hewitt v. Helix Energy Sols. Grp., Inc. involves a highly compensated oil rig worker who was paid a weekly “salary” and upon his termination sued Helix for unpaid overtime on the basis that he was not paid an annual salary and therefore was not an exempt employee. The outcome of this case could impact employers who pay a daily or weekly “salary” as well as those who pay salaried employees on an hourly basis.

    In the past couple of years, we’ve seen a large number of FLSA cases arise, costing employers millions. Below are just a few recent headlines: 

    Amazon.com Services and its Contractor Fined $6.4 Million (March 2021)

    Court Approves $8.5 Million Settlement for Juicers in Misclassification Case Against Lime (July 2021)

    Holland Acquisition Inc Pays $42.3 Million in Misclassification Case (October 2021)

    DoorDash Agrees to a $100 Million Settlement (November 2021) 

    Last month I talked about misclassifying employees as Independent Contractors. This month I want to talk about misclassifying employees as exempt. 

    I’ve recently been working with a couple of clients on classification projects and in each of those projects I’ve come across employees who were misclassified. In some cases, it was an easy find for me. But in others, classifying employees is not an easy determination to make. So how can employers ensure that they are classifying employees correctly? 

    The FLSA has very detailed guidelines on what qualifies an employee to be classified as exempt for the purposes of overtime pay. The first, and easiest, determination is pay – if any employee makes less than $684 per week ($35,568 annually) they MUST be paid as a non-exempt employee eligible for overtime wages. 

    If they meet the salary requirement, the next step is to determine which FLSA exemption test, or tests, apply to that position. A position can potentially qualify under more than one exemption test. The exemption tests are:

    • Executive
    • Administrative
    • Professional/Creative
    • Computer Professional
    • Outside Sales

    Once you determine which test, or tests, apply to the position, you will need to do an in-depth analysis of that position using the exemption test to determine if a position meets the requirements to be exempt. 

    As I mentioned above, some positions are relatively easy to assess, but others are much harder. A great example of this is Healthcare Case Managers. By evaluating the position of Case Manager against the FLSA exemption tests that apply, many evaluate the position to be exempt. However, the Department of Labor issued an Opinion Letter in 2005 in which it determined that Case Managers did not meet the qualifications to be exempt employees under the FLSA. The DOL has a searchable database on all Administrative and Non-Administrative Opinion Letters regarding FLSA which is a great tool to use if you’re unsure whether a position qualifies as exempt. 

    A great way to ensure that your employees are classified correctly is to ensure that you have updated and accurate job descriptions for each position within your organization and to review the job descriptions at least every 2-3 years. 

  • 1099’s – The Cost of Misclassification

    1099’s – The Cost of Misclassification

    In the last few weeks, I have come across multiple cases of employers hiring individuals as independent contractors in violation of the IRS guidelines. Some have done so because they aren’t aware of or don’t understand the IRS guidelines and/or state regulations and some have done so knowingly. Either way, none are aware of the potential risk of misclassifying workers as independent contractors and just how costly such a mistake can be to their organization. 

    The IRS has a 20-Factor Test to help organizations determine if a worker meets the requirements to be an independent contractor. You can read more about what those requirements include in my blog post Taking the Guess Work Out of 1099s. In 2019 California adopted a more rigorous test, the ABC Test, and since then a handful of other states have adopted the ABC Test for some or all workers in their states. 

    The DOL recently announced that they would be hiring 100 additional investigators and focusing on warehouse and logistics companies in a “vigorous” campaign to enforce wage and hour laws. In 2021, 80% of DOL investigations resulted in organizations being found guilty of wage and hour violations. Many of these investigations began with a small payroll issue reported to the DOL by an employee. The top ten private employer wage and hour class actions in 2019 cost employers almost $450 million, close to double the total in 2018 ($253.5 million) (SHRM). As the DOL increases its resources and efforts to crack down on wage and hour violations, more companies may find themselves subject to review. And once a claim is filed by an employee, it opens the company up to have all payroll records investigated. So, while an employee may file a claim for an overtime violation, the DOL may find additional violations by the company, thus increasing the company’s penalties. 

    So what should you do if your organization misclassified employees as 1009s? First, contact an employment attorney to assist you with resolving the issue. There are options to minimize your penalties and an employment attorney can help you determine the best option for your organization. These options include submitting an Advance Determination of Worker Status Form to the IRS, the Classification Settlement Program, and the Voluntary Classification Settlement Program. You can find out more about each of these options at IRS.gov. 

  • Is Your Organization In the Learning Zone?

    Is Your Organization In the Learning Zone?

    Over the past few years, I’ve spoken with a lot of organizations about the importance of psychological safety. A 2012 study by Google showed that psychological safety is far and away the most important factor of a team’s success, yet many organizations lack the psychological safety required to be successful. 

    A few years ago, I worked with a client that was going through some major changes and employee morale was at rock bottom. As I began speaking with employees one theme stood out, employees didn’t feel safe speaking up. There were a number of reasons for this, including the fact that they felt their voices weren’t heard, their ideas were shot down or ignored, their requests for improvements fell on deaf ears, and yet they were expected to increase performance, meet tough deadlines, and help get the company out of the red. They were working in an organization that fell into the Anxiety Zone. There was low psychological safety but high accountability.

    Amy Edmondson, a Harvard professor, is the top authority on psychological safety. She has spent the past thirty years studying the effects of psychological safety on work teams and has found that there are four zones that organizations fall into.

    The zones are defined by the level of psychological safety and motivation (keep in mind motivation can be negative or positive) and accountability the team has. The zones are described as follows: 

    Learning zone: In a learning zone, team members experience high accountability and high psychological safety. This is the ideal learning environment for innovation and growth because even though members are responsible for their actions, their team offers continuous support.

    Comfort zone: Team members have high psychological safety and low accountability. While this zone is more relaxed, almost like a vacation, there is no push for creativity and growth.

    Apathy zone: With low psychological safety and low accountability, team members fall into the apathy zone. There are no repercussions for mistakes, teams lack adequate communication and support, and individuals struggle to care about their work.  

    Anxiety zone: Team members experience low psychological safety and high accountability. Communication breaks down and when mistakes are made, people are often too scared of punishment or humiliation to take responsibility. Opportunities for learning and innovation are scarce. 

    Which zone is your team in and if you’re not in the learning zone, how can you help your organization get there? 

     

  • Are Your Company Policies Holding You Back?

    Are Your Company Policies Holding You Back?

    If there’s one thing I’ve learned in my almost 20-year career in HR it’s that the world of HR is ever-changing. And while sometimes we all sit back and take a big sigh and think “not again”, it’s a good thing. Change allows us to grow and adapt. But are there policies that we are holding on to because we’ve always done it that way or everyone else is doing it that way? 

    In this time of the “Great Resignation”, I find myself thinking about what could be changed to make the biggest impact. Not only in the short-term to get people in the seats, but to keep them there for the long haul. 

    Throw out the 40-hour workweek: Henry Ford implemented the 40-hour workweek to give employees a work-life balance that they didn’t have in the 1920s. There were no regulations on working hours, but Ford took a chance, a risk, and did what he knew was right for his employees. One hundred years later, we’re still pushing a 40-hour workweek, even though it’s estimated that the U.S. Labor production has increased by over 300% since 1950. Iceland conducted a study to test out a shortened work week and the results were so powerful that 90% of the workers in Iceland no longer work 40 hours per week. Shorter workweeks have led to happier employees and in many cases an increase in productivity. Other countries, such as the United Arab Emirates, are following suit. 

    While reducing the workweek may not be an option for all organizations, what are some options you could explore? Maybe flexible work schedules, shared shifts, or compressed workweeks. 

    Rethink your background checks: A recent study by RAND Corporation shows that by age 35, 64% of unemployed men have a criminal history. This figure doesn’t even account for unemployed women who struggle to find work due to a criminal history. And many of those who struggle to rebuild their lives and find gainful employment don’t have violent histories, they have drug histories. In recent months we’ve been talking the “great resignation” to death, trying to figure out how to keep employees, how to recruit new hires, and what we need to do differently. But rethinking our background check requirements hasn’t been a part of that conversation. Why does your organization conduct background checks? What are your guidelines for what gets past and what gets passed on? Yes, there are industries that have bona fide background requirements, I understand that. But if you’re not one of those industries, does your background check policy really make sense for your organization? Is it helping you or hindering you? Imagine the potential talent you could tap into by making changes to that requirement or doing away with it completely. 

    Rethink your benefits program: Why do we create benefits packages that are “one-size-fits-all”? A recent study conducted by Lighthouse Research & Advisory shows that employment priorities are different by age group, with the #1 priority for younger employees being work-life balance, while older employees are focused on finances. How can we as employers create a benefits program that meets all of their needs and wants? Imagine a plan that would allow younger employees to elect extra PTO while older employees could elect a cash incentive. Could creating an al a carte benefit program be the wave of the future? Where employers offer a benefit stipend and employees could pick and choose how they want to use that stipend, and their options include conventional benefits such as health and dental coverage and unconventional benefits such as gym memberships and extra paid leave, or even just a payout? 

    These are just a couple of examples of rethinking your company policies using a growth mindset. I challenge you to take a look at your policies, read your Employee Handbook, and ask yourself why your company policies are what they are. Start with your workweek, background, and drug testing policies, benefits, paid leave, and go from there. If the answer you come up with is “we’ve always done it that way” or “it’s similar to what other companies are doing” then you’re focused on a fixed mindset. Ask yourself if there’s a different option that would work better for your organization.

  • Employment Law Update

    Employment Law Update

    2021 was a roller coaster ride when it came to labor and employment law. So what can we expect in 2022?

    Now that the Supreme Court has ruled against the OSHA ETS on vaccine mandates, we will see a shift back to more standard labor and employment law issues this year. The mid-term elections later in the year may impact the direction of labor and employment law as well. Political analysts are keeping a close eye on a number of states that they anticipate may flip with this election. Republicans only need one seat in the Senate and five in the House to regain control. If that happens, we may see a shift from an employee-friendly Congress back to an employer-friendly Congress. 

    Here are some of the areas that we may see changes in for 2022.

    Wage and Hour

    Eleven states have increased their minimum wage rates for 2022. If you are a multi-state employer, you need to confirm that you are compliant with these new rates. In addition, Congress increased the minimum wage for all new, renewed, and extended federal contracts to $15.00 effective January 30th. Some believe this increase is a first step to increasing the federal minimum wage. 

    In addition, the DOL released rulings regarding tipped wages in December. The first ruling reinstates the 80/20 rule, by which employers can claim the tip credit if at least 80% of the work of the employee is tip-generating. The second ruling was aimed to clarify regulations regarding tip pooling or withholding of tips, which is prohibited unless it is to cover the cost of credit card fees. 

    It’s anticipated that the federal minimum wage debate will continue in 2022. 

    Labor Relations

    In December, the NLRB issued a request for briefs to survey whether or not they should reconsider their standard for determining Independent Contractor status. There are also numerous states weighing the question of gig workers and employment classification this year, with Massachusetts aiming to put the question on the ballot this year and other states to possibly follow. Congress currently has bills on the floor aimed at helping to protect the gig economy as well. So it will be interesting to see if there are any advancements on this issue in 2022. 

    Immigration

    It’s anticipated that the current backlogs will shrink this year, although they will not disappear altogether. Under Biden, possible immigration reform includes increasing the total number of allowable employment green cards up from 140,000 annually as well as carrying over any unused slots into the next year. The Biden plan would also add family green cards to allow the family members of the employment green cardholder access to the US without counting against the total number of green cards issued each year. 

    The Biden administration is reviewing the high rate of denials issued for H1-B Visas under the Trump administration and has proposed legislation that would provide permanent work permits to the spouses of H1-B holders. 

    The House just passed H.R. 4521 The America COMPETES Act on February 4th. While H.R. 4521 is aimed at strengthening competition against China, it contains two elements that would impact employment visas. First is the creation of a new classification of visa, W-1, W-2, and W-3, aimed at start-up businesses. Second, the Act would allow for Visa holders with certain doctoral degrees in STEM to obtain a Visa without that Visa counting against annual limits.

    Healthcare

    The Build Back Better Act passed the House in November but stalled in the Senate. Democrats promised a trimmed back version of the bill and Biden continues to attempt to revive talks, but a revised bill has not yet been presented. The fate of the bill is uncertain, but it’s definitely one to keep an eye on this year. While the Build Back Better Act is a very robust bill that would impact many areas of government, employers should pay particular attention to the areas that would impact healthcare, including expansion of the ACA (including modification of the affordability test) and paid family and medical leave. 

    Retirement

    The Supreme Court ruled on January 28th to send the case of Hughes v. Northwestern University back to the 7th Circuit Court for review.  Plaintiffs in the case claim that the plan fiduciary violated ERISA when it did not ensure that the funds offered were prudent options and that the recordkeeping fees were excessive. The outcome of this case could impact a number of cases across the country as well as set a higher standard for fiduciary responsibilities moving forward.