SmartHR

DOL Fact Sheet: Tips Belong to the Employee

March 6, 2012 – 5:01 pm | By Rita Zeidner | No comments yet

Tips are the property of the employee, whether or not that employee has taken a tip credit under the Fair Labor Standards Act. So states Labor Department Fact Sheet #15A, released by the Wage and Hour Division in February. The fact sheet reflects tip credit regulations DOL updated in May 2011. Under the regulation, an employer who satisfies the requirement to take a tip credit may use an employee’s tips only:

• As a partial credit against its minimum wage obligation to the tipped employee and/or
• If the tips go into a tip pool.

Even if the employer does not take a tip credit, tips remain the property of the employee who received them and the employee cannot be required to turn over the tips to the employer, according to the fact sheet. Similarly, the employer may not take the employee’s tips to further an invalid tip pool, such as one that includes employees who do not customarily and regularly receive tips, like cooks, janitors or dishwashers.

Attorney Offers Tips for Staying Compliant with DOL’s Wage and Hour Priorities

March 6, 2012 – 4:40 pm | By Liza Casabona | No comments yet

As the Department of Labor’s Wage and Hour Division steps up enforcement initiatives,  the need for employers to monitor their wage and hour practices is growing. Speaking at the Society for Human Resource Management’s 2012 Employment Law and Legislative Conference March 5, Tammy McCutchen of Littler Mendelson in Washington, a former Bush appointee at DOL, offered tips to help employers reduce their legal exposure:

• Evaluate  current compliance efforts;
• Adopt wage and hour policies and procedures that help correct problems. For instance,   if overtime is prohibited,  tell employees how to report  a manager who forces them to work more than 40 hours in a week;
• Implement a complaint and investigation process internally within your company; and
• Conduct training (target managers specifically so they can ensure proper implementation of policies on the front lines).

DOL’s directed investigations (those initiated without an employee complaint) have increased in recent years from 27 percent of investigations in 2010 to 32 percent in 2011, McCutcheon said. The agency has announced a number of targeted initiatives in recent years, including a major effort focused on misclassification of independent contractors that has resulted in memorandums of understanding with the Internal Revenue Service and 13 states.

HHS Touts the Progress of No More Limits Under Health Care Reform

March 6, 2012 – 1:42 pm | By Gwen Cofield | No comments yet

Approximately 105 million Americans now have health coverage without lifetime limits on benefits — including 95 million individuals with employer-sponsored health coverage — due to health care reform requirements, according to a new report by the U.S. Department of Health and Human Services (HHS). The Affordable Care Act prohibits health plans renewing on or after Sept. 23, 2010.from imposing a lifetime dollar limit on most benefits. The HHS report took a “before” and “after” view of this requirement, based on data from the 2009 Kaiser Family Foundation’s Employer Health Benefits Survey, a 2009 America’s Health Insurance Plans (AHIP) report and the 2009 to 2011 versions of the Current Population Survey (covering calendar years 2008-2010). HHS cited Kaiser data finding that 59 percent of all workers with employer health coverage in 2009 had some type of lifetime limit placed on their benefits, with 89 percent of those with individual coverage having a lifetime limit on benefits. Post reform, HHS estimated that 105 million Americans now have health coverage without lifetime limits on benefits  -- most of them under employer plans, including 70 million persons in large employer plans and 25 million persons in small employer plans, along with 10 million persons with individual coverage. The report, which can be found here. also breaks down the data by ethnicity, gender and age, and state residency.

Be “sure” before classifying a worker as an independent contractor

March 6, 2012 – 11:51 am | By Khristine Scholtz | No comments yet

Never base a worker classification decision on uncertainty, according to attorney Christine Walters. Walters, a Maryland HR consultant presenting at the Society for Human Resource Management’s legislative conference in Washington, D.C., March 5,  ticked off the many reasons employers might be inclined to classify a worker as an independent contractor. Among them: to avoid paying employment taxes and to ‘try out’ a worker before extending the legal protections that only cover employees. These reasons, however, wont pass legal muster and making a bad call carries increasing legal risks, she said. The Labor Department and the Internal Revenue Service have both stepped up their worker classification enforcement efforts and now are sharing information. As a result, an employer investigated by one agency for possible classification violations is more likely than ever to be investigated by the other. These recent pacts have a threatening message, Walters said. The purpose is to “send a consistent message to employers about their duties to properly pay their employees and to pay employment taxes.” Employers who make the wrong call may face heavy penalties and be ordered to pay employment taxes and overtime. States are also clamping down on enforcement and DOL is sharing enforcement information with them as well, Walters said. She urged employers to apply the IRS criteria for distinguishing employees from independent contractors, described in IRS Publication 1779. Factors that often lead to a court or administrative ruling that a worker is entitled to employee status  generally fall into three categories, she said. They are: Behavioral control:  If employer directs or controls how the worker does the work. Financial control:  If the employer directs or control the business part of the work, including reimbursing individuals for their expenses. The parties’ relationship:  How the employee and employer perceive their relationship. The  relationship can be spelled out in a written contract or be based on whether an individual receives employee benefits. Walters urged employers with questions to contact their state labor department with questions. Creating a relationship with local labor authorities may pay off later by creating a record demonstrating a good faith effort to be compliant.

Common-sense Steps Can Reduce Privacy Risks From Mobile Devices

March 6, 2012 – 11:40 am | By David Slaughter | No comments yet

[caption id="attachment_2965" align="alignleft" width="150" caption="http://www.practicefusion.com/ehrbloggers"][/caption] The proliferation of mobile devices has blurred the line between employer and employee information, and created new threats to sensitive data that are all too well chronicled. But common-sense steps can still be taken to minimize these risks without stifling the usefulness of these new tools, two data privacy and security experts said in a recent webinar. “The shift in business models required us to have tech-savvy employees,” and now that consumers rather than businesses are driving the IT market, employees often bypass the procurement process, said Michael Spadea, CSS privacy manager for Microsoft Corp. “IT management didn’t necessarily change with the times.” “It’s not just technology companies anymore addressing these issues,” added Christine Lyon, an attorney with Morrison & Foerster LLP. “Nobody has this entirely figured out yet,” and different businesses have different needs, so “slow down and think about this a bit,” she said. “Step back and look at the big picture,” Spadea said. How mobile is your work force? How often do employees need company data, and how sensitive is this data? “You want to leverage the information classification scheme you already have in place,” he said. “Think about how you move the same or similar controls into the mobile environment.” Employees should be involved in this process because “it’s very important to get their feedback,” he added. When assessing the risks and evaluating controls, “make sure your policies are specific enough but flexible enough to grow,” Spadea said. “Make sure the changes you’re making are doable.” The risk assessment framework should take into account how employees will be using the devices. “Do all people need to be accessing the data all the time? Probably not,” Spadea said. “Think about managing the data, not the devices. Start from a data-centric point of view,” classify your data, then “make sure the devices themselves are going to meet your security policy.” One key step is to secure access to the company’s network. “How will your mobile and remote employees be accessing company data?” Lyon asked. If you allow them to remote in, “how do you secure those connections?” Then consider “what to do with the local copies” of data saved on the devices. Remote or automatic data “wiping” capability, if the device is lost or stolen, is a common capability, Lyon noted. But if the wipe would destroy the employee’s own data as well as company data, you’ll need to be very clear to them about that, and may need their legal authorization, she said. Lyon and Spadea spoke in a webinar presented by the International Association of Privacy Professionals. Remote access and other data security issues, particularly as addressed by HIPAA’s security standards, are covered in the Employer’s Guide to HIPAA and Employer’s Guide to HIPAA Privacy Requirements.