The Frankenstein Effect: Key Issues · 2017-03-28 · 1 The Frankenstein Effect: Risky...
Transcript of The Frankenstein Effect: Key Issues · 2017-03-28 · 1 The Frankenstein Effect: Risky...
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The Frankenstein Effect: Risky Transformations between Employees, Volunteers & Independent Contractors
Melanie Lockwood [email protected]
Key Issues• Volunteer or
employee?
• Independent contractor or employee?
• Frankenstein Effect scenarios
• Preventing the Frankenstein Effect
What does ‘volunteer’ mean to you?
‘When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean—neither more nor less.’
‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’
Lewis Carroll, Through the Looking Glass
Volunteer or Employee?DOL FLSA 6-‐Question Test (to determine who is a volunteer)1. Is the entity that will benefit/receive services from the volunteer a
nonprofit organization?
2. Is the activity less than a full-‐time occupation?
3. Are the services offered freely and without pressure or coercion?
4. Are services of this kind typically associated with volunteer work?
5. Were regular employees displaced to accommodate the volunteer?
6. Does the worker receive (or expect) any benefit from the entity to which he/she is providing services?
Fair Labor Standards Act (FLSA)
• The FLSA is a federal law that outlines employment standards
• Administered by the Department of Labor (DOL)
•When state laws differ from the FLSA, employer must comply with the standard most protective to employees.
Classifying Employees Correctly
• IRS – “anyone who performs services for you is your employee if you can control what will be done and how it will be done.”
• www.irs.gov/Businesses/Small-Businesses-&-Self-Employed/Employee-(Common-Law-Employee)
What is an Employee?
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Exempt versus Non-Exempt
Depends on the specifics of the job.
NOT:• The organization’s ability to pay• The title of the job or position• The whim of the organization
Three Factor Test• How much the employee is paid• How the employee is paid• The kind of work duties performed by the employee
•YES – your employee is non-‐exempt
•NO – go to Test #2
Doe s your emp loyee make le s s than $455 per week?
Test #1: Salary Level
Is you r employee paid on a s alary basis?Test #2: Salary Basis
Employee receives a predetermine amount of compensation each pay period on a weekly, or less frequent basis. That amount cannot be reduced based on the quality or quantity of the employee’s work.
(exceptions: www.dol.gov/whd/overtime/fs17g_salary.htm)
•NO – your employee is non-‐exempt• YES – go to Test #3
• To be exempt, an employee must generally meet the criteria for one of the specific exemption categories
• Remember, a job title doesn’t necessarily put your employee in one category or another
Care fully consider the s pecif ic du tie s your employee undertakes…
Test #3: Duties
1. Executive• Manages organization or subsection of it• Supervises employees; ability to hire & fire
2. Administrative• Responsible for primarily office work• Exercises discretion & judgment on important matters
3. Professional• Advanced specialized knowledge• Intellectual work, with consistent exercise of discretion & judgment
Common Duties Exemptions
• The payer has the right to control or direct only the result of the work and not what will be done and how it will be done.
What is an Independent Contractor?
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1. Instructions2. Training3. Integration4. Services rendered personally5. Control over assistants6. Continuing relationship7. Work schedule8. Full-‐time required9. Work premises10. Work order set
IR S 20-‐FACTOR TEST (NO FACTOR I S DETERMINATIVE)
Employee or Contractor?
11. Regular reports12. Payment by hour, week, month13. Payment of travel expense14. Providing tools and materials15. Significant investments16. Realization of profits & losses17. Working for multiple employers18. Availability to general public19. Right to discharge (employer)20. Right to terminate (employee)
No regulatory risk for classifying contractor as employee
Possible risks:• Cost• Respondeat superior liability• Workers compensation claims• Paperwork burden• Discrimination claims
SIGNIFICANT regulatory risk for classifying employee as contractor • Employment taxes for that worker (and penalties)• See IRS Code section 3509
Does it Matter?
Employee• Regular funding available• Minimum educational and experience requirements• Requires availability, hands-on, willing to take on new duties• Professional development and promotional opportunities
Volunteer• No regular funding• Flexible in terms of skills, background, requirements• Equal or greater reward to volunteer
Independent Contractor• Short term + Special expertise + Results of project are main value
Which Role Makes Sense?Wage and Hour Compliance
In 2013 alone, WHD handled over 33,000 cases of compliance, and ordered the payment of approximately $250 million in back wages to nearly 270,000 employees.
These cases were split nearly equally between minimum wage and overtime violations, but over 75% of back wages recovered were for overtime violations.
Source : The U.S. Department of Labor’s Wage and Hour Divisions Fiscal Year Statistics for WHD for 2013, found at: http://www.dol.gov/whd/statistics/
Review current positions in your organization:• Does documentation match the classification decision? • Do employees have job descriptions?
• Is exempt/non-exempt classification supported by salary & duties?
• Do all independent contractors have a contract?• Do volunteers have a volunteer agreement or
volunteer position description?
Assess & Analyze
RISK TIPS: Preventing the Frankenstein Effect
•How did the misclassification occur? Was it intentional or accidental?
•What is the potential legal exposure to the organization?
•What time/effort/cost will be required to remedy the errors?
•What does your labor lawyer say?
Remedying Misclassification
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If you have six months, and you still need help making a classification determination…
Complete and file: Form SS-‐8, Determination of Worker Status for Purposes of Federal Employment
Taxes and Income Tax Withholding
The organization or the worker can file this form. The Department of Labor will make an official determination.
Last Resort Help!
Factors:
1. Behavioral – How and What and When
2. Financial – How paid? Reimbursements? Supply
3. Type of relationship –Contract? Benefits? Temporary?
TWO PR IMARY ISSUES: (1) CONTROL; (2 ) INDEPENDENCE
Classifying as Contractors
Permissible circumstances:
• Absent for 1+ full days for personal reasons other than sickness or disability
• Absent due to sickness or disability if aligned with policy or practice
• For penalties for violating safety rules of major significance• For disciplinary suspensions for conduct violations
Exempt employ ees can generally not be dock ed pay
Docking Employee Pay
•Volunteers – should have agreement
•Contractors – expectations should be outlined in contract
Applying the Employee Handbook to ALL Workers
Gifts for VolunteersNon-‐cash gifts are best!• Under $100 per year• Avoid cash substitutes• Try no-‐additional-‐cost services
Standardize your gifts • Avoid unfair perceptions• Don’t alter gifts based on productivity or hours
Volunteer Reimbursements• Must be documented & legitimate business expenses
• Travel to/from distant volunteering sites; long distance travel, meals, & lodging costs
• Office costs (postage, telephone calls, copying, etc.)
• Equipment or protective clothing
• Attendance at training events/courses (related to volunteer role)
• Have a clear reimbursement policy!
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Other Benefits: Meals & LodgingGenerally exempt from taxes IF:• Meals: provided for the NP’s convenience & served on the program premises
• Lodging: provided to volunteers who are required to accept the lodging as a condition of their service
Other Benefits: Big Prize Perks• Taxable income for volunteer• Nonprofit must report
Other Benefits: ScholarshipsAs qualified scholarships:• Based on merit/need• Used for permitted purposes
As tax-‐free fringe benefit:• If the class/course improves volunteer’s skills, or is required by NP or by law
Other FAQs: Unpaid Interns?DOL/FLSA Standards:1. Experience must be similar to that offered in an educational setting
2. Internship must be for the intern’s benefit
3. Intern must not displace regular employees and work under close supervision
4. Employer should derive no immediate advantage from intern
5. Intern should not necessarily be entitled to a job at the end of the program
6. Both the employer and intern must clearly understand that the intern is not entitled to wages
Unpaid interns should be trainees!
TAKE THE HIGH ROAD.Never base classification
solely on your ability to pay.
Melanie Lockwood Herman703.777.3504 | [email protected]
Thank You!