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Human Resources Tips for all employers and employeesMichele O'Donnell (454)     MMC, Inc. Top 8 Preparations for Year End ActivitiesPosted Monday, November 16, 2009 (9 days 2 hours ago.) Viewed 4 times. As 2009 draws to a close, now is the time to begin planning year-end activities. Below is a list of 8 of the most common year-end Human Resources related items to consider. They should be addressed prior to January 2010; having a plan will aid in a smooth transition into the New Year.
In addition, you should provide your state's equivalent of this form (in California it is form DE34-Employee's Withholding Allowance Certificate).
Permalink Comments (0) The Genetic Information Nondiscrimination ActPosted Tuesday, November 10, 2009 (15 days 2 hours ago.) Viewed 8 times. On May 21, 2008, President George W. Bush signed The Genetic Information Nondiscrimination Act (GINA) into law effective November 21, 2009. GINA protects insurance policy holders and employees from discrimination on the basis of genetic information. The GINA strictly prohibits employers from collecting genetic information from employees and using this information to make employment related decisions or terms of employment. The GINA applies to all private, state, and local government employers, with 15 or more employees. Prohibited discrimination includes failing to hire or discharging an employee or otherwise discriminating against an employee with respect to compensation, terms, conditions, or privileges of employment based on that employee's, or prospective employee's, genetic information. An employer may not use genetic information to limit, segregate, or classify employees in such a way as to deprive them of employment opportunities or adversely affect their status as employees. The GINA states that employers, including labor unions and employment agencies, must adhere to strict guidelines regarding genetic information, and that it is prohibited to retaliate against an individual for opposing acts made lawful by The GINA. As with most legislation, there are some exceptions regarding the collection of genetic information; however, employers generally are barred from collecting genetic information about an employee or an employee's family member, whether by request, mandatory disclosure, or purchase from a third party. The Equal Employment Opportunity Commission (EEOC) enforces anti-discrimination legislation such as this. The EEOC has not yet approved the Final Rule of Title II GINA, and it is anticipated that the final regulations will be released two weeks prior to the law's effective date. Employers should closely monitor any new GINA requirements for the next several weeks to ensure compliance. Please note that the GINA impacts various other pieces of legislation such as the Americans with Disabilities Act (which is also enforced by the EEOC), Employee Retirement Income Security Act of 1974 (ERISA), and the Health Insurance Portability and Accountability Act of 1996 (HIPAA). The GINA also requires that all genetic information be treated as health information under HIPAA, thus making this information subject to HIPAA's privacy regulations. Most states already have laws prohibiting the use of genetic information. Title II of GINA, however, is much more comprehensive and far reaching, so it is critical for employers to understand its requirements to ensure compliance with the Act. The list below includes some steps you can take as an employer to prepare for GINA:
Permalink Comments (0) Worker Classification Investigations Gain MomentumPosted Tuesday, August 04, 2009 (113 days 1 hour ago.) Viewed 29 times. Currently, one of the fastest growing areas of litigation, including class action suits, is in the proper classification of workers as either employees or Independent Contractors. The dictionary defines an Independent Contractor as "a person who contracts to do work for another person according to his or her own processes and methods; the contractor is not subject to another's control except for what is specified in a mutually binding agreement for a specific job." Misclassifying a worker as an Independent Contractor can have far reaching implications including high dollar liabilities. The Internal Revenue Service (IRS) has very strict criteria for determining the Independent Contractor vs. Employee status that has been in place for many years (discussed later in this article). Federal Express has been a poster child for this issue, owing the IRS $319 million in back taxes. In a suit filed against Northwestern Mutual Life Insurance Company, the proposed class is seeking $200 million for misclassified workers. At the federal level, the IRS is in the midst of a misclassification crackdown. It is important to note that on the Federal level there has been previously proposed federal legislation - the Independent Contractor Proper Classification Act - that is expected to be revisited by Congress. This act imposes strict penalties on employers for worker misclassification. A brief summary of the act is below; Independent Contractor Proper Classification Act of 2007 - Amends the Revenue Act of 1978 to: (1) require employers to treat workers misclassified as independent contractors as employees for employment tax purposes upon a determination of misclassification by the Secretary of the Treasury; (2) repeal the ban on Treasury regulations or revenue rulings on employee/independent contractor classifications; and (3) eliminate the defense of industry practice as a justification for misclassifying workers as independent contractors. In addition to the Federal Act discussed above, many states have current or pending legislation of a similar nature. Some examples are;
Thomas E. Perez, Secretary of Maryland, offered this quote on regarding Maryland's Workplace Fraud Act, "This new law will ensure that employers who attempt to cheat the system, their workers and their competitors, will pay a steep price for their actions. It should send a message that we will be fair to those employers who are trying to play by the rules, but we will not tolerate flagrant and intentional violations of the law for personal gain." Both the federal and state governments are recognizing that in many cases employers intentionally misclassify workers as Independent Contractors in order to avoid payroll tax liabilities, workers compensation premiums, and/or wage & overtime responsibilities on these workers. The IRS estimates that the federal lost tax revenue for misclassified workers as $3 - $5 billion (yes, billion) dollars per year. It is estimated that 7 15% of workers are misclassified as Independent Contractors. As you can imagine, there are many federal and state entities that have an interest in the misclassification of workers:
To determine if a worker is an Independent Contractor can be challenging, especially since there are different criteria for the various federal and state entities mentioned above. Even though there are different tests, most tests flow from the long established principles of the IRS. The IRS employs a 20 Factor Test that determines the employers level of control in these categories: Behavioral, Financial and Type of Relationship. Please see the links below for more information and guidance on properly classifying workers. If you want to learn more Human Resources Tips, please click here for more information.
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