My theme for the summer seems to be money. It’s been a huge topic of conversation in my house and with clients, from trying to help my oldest navigate scholarships, FAFSA, and how to responsibly manage having a credit card, to teaching my 16-year-old to understand income taxes, to helping clients answer questions about wages and payroll. 

Over the past few weeks, I’ve talked about misclassifying employees, both as Independent Contractors and as exempt employees. This week I want to shift a little and talk about some of the common payroll errors and how to avoid them. 

Overtime Pay: 

• Comp time for hourly employees: Unfortunately, unless you are a government agency, employers cannot opt to provide comp time in lieu of payment of overtime wages. Any employee who works over 40 hours in a workweek must be paid for that time. 

• Averaging hours across the pay period: The federal law states that anything over 40 hours in a workweek must be paid as overtime. A common error that employers make is averaging that time over a two-week period. “Well, the employee worked 80 hours over two weeks, with 50 hours in one week and 30 in the next, so we don’t owe them overtime.” Unfortunately, this is not the case. If your workweek is Sunday through Saturday and an employee works over 40 hours in that workweek, they must be paid for overtime hours worked, even if you pay biweekly and they work less than 40 hours in the second week. And keep in mind it’s based on the workweek, not calendar week. So, if your workweek is from Wednesday to Tuesday, it’s 40 hours within those days. Keep in mind that a few states, such as California, have overtime laws that are more stringent than the federal law, so be sure to confirm state overtime laws as well. 

• Overtime wasn’t approved in advance, so we don’t have to pay it: Regardless of whether or not the employee followed proper procedures, you are still required to pay them for all hours worked, even if it’s unapproved overtime. In such cases, you should pay the wages and then follow your disciplinary process to counsel the employee on not getting pre-approval to work the hours. 

• Miscalculating overtime pay: Many employers believe that overtime pay is based on an employee’s hourly rate, but in fact, there are other wages that may need to be added to that calculation. The FLSA states that “employees must receive overtime pay for hours worked in excess of 40 in a workweek of at least one and one-half times their regular rates of pay.” Note that this does not say hourly rate, but “regular rate of pay.” This is important because an employee’s regular rate of pay could include shift differentials, premium pay, stipends, and nondiscretionary payments (for example quarterly bonuses based on production). 

Improper Withholdings: 

• Not withholding correct income taxes: This has become a bigger issue with the increase in remote workers post-Covid. Many employers are not sure how to navigate figuring out how to set up taxes for out-of-state employees. It’s important to know that some states have a reciprocity agreement, meaning that an employee can live in one state and work in another and only be taxed in the state where they live. For example, given the mobility across state lines in the Virginia, Maryland, and DC areas (DMV), employees who live in one of those locations but work in another DMV location do not have to pay taxes to the location in which they work. 

• Not setting up state tax accounts: In addition to understanding reciprocity agreements, the employer must understand what business accounts they need to set up in each state. This will vary but usually includes a state tax account and a state unemployment insurance account. Failure to set up and pay into the proper state accounts can lead to hefty fines and penalties. 

• Improper deductions from wages: Federal law allows employers to make certain deductions from an employee’s wages without their written consent. These include tax deductions, garnishments, and meals and lodging. Beyond that, employers must have written consent to deduct from an employee’s wages. For example, if you as the employer require an employee to pay for their own PPE, you must have them sign a payroll deduction consent form. 

Direct Deposit:

• Requiring direct deposit: One item that many employers are not aware of is that some states regulate whether or not an employer can require payment of payroll wages via direct deposit. While direct deposit is the easiest method of payment and the preferred method of most employers, it’s not legal to mandate direct deposit in some states. As with many employment laws, the regulations vary by state. 

What are some of the payroll errors or questions you have faced in your organization?