Exempt Employees Are Many Times Not "Exempt"

The Consequences of Misclassifying Employees: Comments from a Labor and Employment Lawyer

There are two types of classification disputes that can involve employers and their employees. The first is whether the workers are bona fide independent contractors. The second is whether the workers are bona fide exempt employees under the wage and hour laws. This article briefly examines the two areas.

The IRS has a 20 question test it has adopted to determine if workers are independent contractors or employees. The answer to these questions can impact the employer's obligation to withhold taxes and pay payroll taxes like FICA and FUTA. Similar issues arise under state worker's compensation and unemployment tax laws. Misclassification of employees as independent contractors can have both financial and legal repercussions. Nevertheless, failure to properly characterize workers is extremely commonplace in the U.S. The IRS estimates the underreporting of self-employment taxes due to misclassification of employees accounts for $148,000,000,000 per year and 43 percent of the gross tax gap. Since misclassifying employees can cost a company a devastating loss of time, effort and money, it is essential that companies are educated on the causes and how it can be prevented.

The other type of misclassification is of employees to determine whether they are entitled to minimum wages and overtime compensation. The most important statute here is the Fair labor Standards Act (FLSA). We interviewed Daniel Abrahams, Partner at Epstein, Becker & Green, P.C., to learn more about the consequences of improperly classifying as employees as "exempt" from federal and state wage laws and what companies can do to avoid this costly mistake.

According to the Law Office of Lowell J. Kuvin, LLC, the most common reason for misclassifying employees is misunderstanding the law and not knowing what makes an employee exempt. While a non-exempt employee is entitled to be paid minimum wages and overtime, an exempt employee is excused from minimum wage and overtime provisions of law. In order for a position to be exempt, employers must pay a salary rather than an hourly wage and typically only executive, administrative, and professional fit this criteria. The Law Office of Lowell J. Kuvin, LLC also points out that even though only about 10% - 20% of the United States workforce is excused from the coverage of the federal wage laws, a much larger percentage is classified as exempt from the minimum wage and/or overtime provisions.

Employers often mistake workers as exempt because they are salaried. However, in addition to being salaried, the employee must also perform a certain high level of duties. For example, an exempt bona fide executive would include any employee who has the authority to hire or fire other employees or whose suggestions and recommendations in regards to hiring, firing, advancement, promotion or any other change of status of other employees are given particular weight. To be a bona fide independent contractor some of the issues the IRS would look at are whether the worker manages and invests in his/her business and/or whether they have an opportunity for profit or loss. The second cause for misclassification is for financial considerations. Sometimes employers will classify employees as exempt purposely, so they don't have to pay them overtime.

Depending on the size of the organization, employee classification is either handled by human resources or in the case of a smaller company, the controller or CFO. The employer makes judgments upon hiring an employee and often classifies his or her workforce as a group.

Misclassifying employees is critical, and for many companies it can mean the difference of thousands of dollars. The Law Office of Lowell J. Kuvin, LLC offers the following suggestions to ensure that companies are properly identifying employees:

Read over the legal regulations for exemptions and devise a clear job description for each job classification. Based on these explanations, you can make reasonable determinations as to whether the employee is exempt or non-exempt.

Review personnel manuals and payroll practices to ensure you're not making improper deductions in the salary of otherwise exempt employees. Under the Fair Labor Standards (FSLA) there are complicated rules that regulate deductions in pay to be made to the salary of an exempt worker. Making the wrong deduction will turn workers into non-exempt employees.

Visit the Department of Labor and the IRS websites. The IRS offers an in-depth review of how to correct the reporting of misclassified employees.

Attend workshops to gain an understanding of the financial impact of misclassifying employees.

Seek professional advice. If you're unsure about how to classify an employee, consult a professional. Although their services may include a fee, this is sure to save you money in the long run.

According to the Law Office of Lowell J. Kuvin, LLC, there were 4,500 Fair Labor Standards Act (FLSA) lawsuits filed last year. Additionally, numerous legal actions were made by the U.S. Department of Labor, along with thousands of labor investigations. As an employer you are required to post a notice in your workspace, notifying employees of the right to file a complaint through the U.S. Department of Labor. The department currently employs close to 1,000 U.S. Department of Labor investigators scattered around 150+ offices that take complaints.

Misclassifying workers can have tremendous financial consequences for companies. If it is an independent contractor situation, they may have to endure an audit from the IRS or a state department of taxation. If it is a wage and hour matter, they may find themselves in class action and individual lawsuits and be taken to court. The organization will not only have to pay back wages and overtime owed, but a variety of penalties and in many cases, attorney fees. Non-complying employers may also be required to pay amounts that should have been withheld or paid on the employees' behalf. For example, taxes, FICA, FUTA, benefit contributions or the value of lost benefits, plus penalties, interest, other damages, and/or attorney fees. Employees who are misclassified as independent contractors and who have work-related injuries and would normally rely solely on workers' compensation benefits, may be able to file a negligence claim against the employer.

Misclassifying employees is a costly-mistake that can happen to any company. However, by taking the right preventative measures, you can save yourself and your company a great deal of money and negative exposure in the long run.

Supreme Court Denies U.S. Country Wide Class Action - Cases Can Proceed Individually

The US supreme court has rejected the biggest sex discrimination case in history, ruling that the claim against retail giant Walmart on behalf of as many as 1.6 million women was too big to bring to trial.

All the top US judges ruled that the 10-year-old gender bias case failed to meet the standard for class action cases, and a majority of conservative judges also ruled that the women did not have enough in common to pool their claims.

The judgment is a major victory for Walmart, which had faced billions of dollars in claims if it had lost.

The women are free to bring cases on an individual basis but legal experts said they may be unwilling to do so. The decision was also described as a blow to all future class action law suits against companies or anyone trying to use the courts to push for systemic change.

The suit was originally filed in 2001 on behalf of Walmart employee Betty Dukes and five of her co-workers, who claimed they had been passed over for promotions and were paid less than male co-workers.

Their lawyers had provided statistical evidence that women earned less and were promoted less often. They alleged that Walmart's corporate culture and employment policies fostered gender stereotyping across the company and that Walmart knew of discrimination but failed to act.

The retailer's lawyers argued that the firm had no case to answer and had a stated anti-discrimination policy.

A lower US court ruled that the case could go to trial, but Walmart appealed to the supreme court. If the class action had been accepted it could have set a precedent for gender discrimination at many corporations, with companies such as Microsoft and General Electric writing to the court expressing their concern.

Led by conservative supreme court justice Antonin Scalia, the court found several problems with the law suit. All the judges agreed that it failed to meet a technical requirement for its type of class action primarily concerned with monetary claims.

Scalia and the conservative judges on the supreme court went further and argued the women did not have enough in common to represent a class of people. Scalia sided with Walmart's argument that there would need to be common elements tying together "literally millions of employment decisions at once" to make the basis for a class action case. He said that such a common element was "entirely absent here."

Legal expert Stuart Slotnick of New York law firm Buchanan Ingersoll and Rooney said the ruling "changes everything in Walmart's favour".

He said large-scale class actions would now be far harder to bring against other companies as greater proof of system-wide discrimination would be needed. Often such proof is only available after a case has been granted class action status and the process of discovery – where lawyers can demand access to sensitive internal documents – begins.

"Walmart was facing tremendous pressure from a case where so many claims were being made against it in one case before one judge," said Slotnick. "Now each individual will have to find a lawyer to fight their case and I would question whether most individuals will want to do that," he added.

Melissa Hart, a constitutional law expert at the University of Colorado school of law, said the US courts were increasingly "hostile" to cases that seemed to be pushing for systemic change.

"It's another signal from the courts that they are not going to let you push for change through the court. The courts are saying they are about individual harm, not systemic change," she said. "In the 1970s and 1980s there was a lot of hope that a law suit could change the world. This court is saying: 'No, it can't'."

Lowell J. Kuvin is a Labor and Employment Lawyer

Lowell J. Kuvin is a Labor and Employment Attorney

Restaurant Chain Using Tip Sharing To Curb Payroll Costs

With the Great Recession pinching profits, restaurant chains both big and small are searching for every way possible to trim costs and boost profits.

Wait staff tips have become one target of such efforts.

While most patrons, it seems safe to assume, still view tips as a way of rewarding good service, restaurants are increasingly viewing those tips as a way of reducing payroll costs.

Darden Restaurants, one of the largest restaurant companies in the U.S., recently began rolling out a mandatory tip-sharing scheme in its Olive Garden and Red Lobster Restaurants. 

Part of an initiative to reduce the company's annual wage costs by around $40 million, the plan, which was detailed in a recent article in the Orlando Sentinel, establishes percentages that servers are required to share with others. This new "tip-out" percent is, in turn, being used to justify reductions in hourly wage rates paid to busboys and bartenders.

Though Darden's official spokesman was reluctant to share details with the media, employees at locations where the plan has already been implemented complain that their earnings have been substantially curtailed by this new approach.

Such mandatory tip sharing stratagems have become easy to implement now that most guests pay with "plastic." Restaurants retain tips received as digital tender, then subsequently divide up and disburse the tip monies through their payroll systems.

Darden is also reportedly looking to reduce the number of full-time employees in its restaurants, replacing them instead with less expensive part-time associates.

Some in the industry have speculated that such cost cutting is shortsighted, since it reduces the financial incentive that otherwise encourages wait staff to deliver top quality service.

Muslim Woman Sues Abercrombie & Fitch Over Hijab

SAN FRANCISCO (AP) — A former stockroom worker for Abercrombie & Fitch Co. sued the clothing retailer in federal court Monday, saying she was illegally fired after refusing to remove her Muslim headscarf while on the job.

Hani Khan said a manager at the company's Hollister Co. store at the Hillsdale Mall in San Mateo hired her while she was wearing her hijab. The manager said it was OK to wear it as long as it was in company colors, Khan said.

Four months later, the 20-year-old says a district manager and human resources manager asked if she could remove the hijab while working, and she was suspended and then fired for refusing to do so.
It's the latest employment discrimination charge against the company's so-called "look policy," which critics say means images of mostly white, young, athletic-looking people. The New Albany, Ohio-based company has said it does not tolerate discrimination.

Still, Abercrombie has been the target of numerous discrimination lawsuits, including a federal class action brought by black, Hispanic and Asian employees and job applicants that was settled for $40 million in 2004. The company admitted no wrongdoing, though it was forced to implement new programs and policies to increase diversity.

"Growing up in this country where the Bill of Rights guarantees freedom of religion, I felt let down," Khan, now a college student studying political science, said at a news conference. "This case is about principles, the right to be able to express your religion freely and be able to work in this country."

Abercrombie defended its record in a comment provided to The Associated Press, saying diversity in its stores "far exceeds the diversity in the population of the United States."

"We comply with the law regarding reasonable religious accommodation, and we will continue to do so," said Rocky Robbins, the company's general counsel. "We are confident that when this matter is tried, a jury will find that we have fully complied with the law."

The lawsuit filed in U.S. District Court in San Francisco comes after the Equal Employment Opportunity Commission ruled in September that Khan was fired illegally. Khan's lawsuit was filed in conjunction with the EEOC's lawsuit.

It is not the first time the company has been charged with discriminating against Muslim women over the wearing of a hijab.

In 2009, Samantha Elauf, who was 17 at the time, filed a federal lawsuit in Tulsa, Okla., alleging the company rejected her for a job because she was wearing a hijab. That case is still ongoing.

The EEOC filed another lawsuit for the same reason, saying the company denied work to a hijab-wearing woman who applied for a stocking position in 2008 at an Abercrombie Kids store at the Great Mall in Milpitas, Calif.

Khan's attorney said her client is looking to get Abercrombie to change its "look policy" to allow religious headscarves to be worn by employees, and for unspecified damages. The lawsuit alleges violations of federal and state civil rights and employment laws.

"Abercrombie prides itself on requiring what it calls a natural classic American style. But there's nothing American about discriminating against someone because of their religion," said Araceli Martinez-Olguin, an attorney with the Legal Aid Society-Employment Law Center.

"Such a look policy cannot be squared with our shared values. No worker should have to choose between their religion and their job."

Florida's New Minimum Wage June 1, 2011

Florida's new minimum wage is $7.31 an hour, up from $7.25, takes effect on Wednesday. That's the minimum amount employers must pay employees, including domestic workers.

The state's minimum wage was increased after a successful Constitutional challenge by the National Employment Law Project and Florida Legal Services. The worker advocacy groups sought to correct an error in the method used by the state work force agency in calculating an adjustment in the minimum wage for inflation.

For tipped workers, the increase is from $4.23 an hour to $4.29 an hour, with the remaining $3.02 to made up by tips.

If your employer is not paying you properly, contact my office at 305.358.6800.

Facebook Posting Led To Worker's Unfair Firing: Feds

WASHINGTON -- The National Labor Relations Board (NLRB) announced today that it has filed a complaint alleging that a Chicago-area car dealership wrongfully fired an employee after he posted commentary critical of the company on his Facebook page. The complaint is the latest in a string of moves by the labor board indicating that it wants to clarify workers' rights when it comes to Facebook and labor law.

In the Illinois case, a car salesman at Karl Knauz BMW, in Lake Bluff, took to Facebook to complain about the lame food and drinks served at a dealership event promoting a new BMW model. He and a few co-workers apparently felt that Sam's Club hot dogs and bottled water were no way to hype a luxury car -- and they thought their sales might suffer because of it. The salesman's critical commentary included photographic evidence of the unremarkable snacks.

At the behest of management, the employee pulled down his post the following week, but he was later fired for it anyway. In its complaint, the NLRB counsel argues that the Facebook posting is "protected concerted activity" -- that's labor-speak for things your employer can't retaliate against you for.

The case suggests, once again, that the labor board views Facebook and other social networking sites as a kind of open forum where employees should feel free to discuss working conditions without fear of being punished.

Just last week, the labor board ruled that a Buffalo, N.Y., nonprofit wrongfully fired five of its workers after they criticized their employer in postings on Facebook. In that case, a worker at Hispanics United hopped on Facebook and floated a colleague's allegation that employees at the nonprofit didn’t do enough to help their clients. The post drew some heated commentary from other employees, and management later canned five of them, saying their comments amounted to harassment of the employee who originally criticized co-workers.

In a case brought by the NLRB last fall, an employee at a Connecticut ambulance company was fired after disparaging her boss on Facebook. The case was settled in February, and the company, American Medical Response, agreed to no longer discipline employees for discussing their working conditions on Facebook or elsewhere.

An NLRB spokesperson says that in the wake of the American Medical Response case, the agency has received a number of complaints regarding firings due to Facebook posts.
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Barring a settlement between the car dealership and the feds, the Illinois case will go before an administrative law judge in July.

When asked about the complaint over the phone, a manager at Karl Knauz BMW said, "I don't know anything about that."

UPDATE: According to trade magazine Dealer, a lawyer for the dealership disputes the NLRB's complaint, saying the worker was fired for reasons other than criticizing his employer in a Facebook posting.

Justice Watch: Pregnant woman who was fired wins key ruling

John Pacenti

2011-04-11 12:00:00 AM

 Alissa Cellucci struggled to get pregnant with her husband for two years, undergoing three rounds of fertility treatment.

When the in vitro fertilization resulted in a pregnancy, she couldn't wait to tell her co-workers in the human resources department at Nova Southeastern University. She even told her boss.
In retrospect, Celluci thinks that was a mistake.

The 30-year-old Davie woman is suing the private university, claiming she was fired as an administrator because she told her superiors of plans to take maternity leave under the Family and Medical Leave Act.
"Women should not be afraid to tell their employers they are pregnant, and they should be able to feel secure they can keep their jobs," Cellucci said.

The FMLA entitles an eligible employee to take up to 12 weeks of unpaid leave in a 12-month period for the birth or adoption of a child or serious health condition. Vacation and accrued leave time can be combined with FMLA leave.

Cellucci's attorney said her client and other women in her position shouldn't feel like they have to keep a secret from their colleagues or employers, turning a time of joy into one of suspicion.

"Any woman who has trouble trying to conceive, the minute you know it you tell anybody and everyone within earshot. Happiness overcomes you," said attorney Dale Morgado, a partner at Feldman Fox & Morgado in Miami who is representing Cellucci.

Cellucci won a big battle already in her lawsuit when U.S. District Judge Jose E. Martinez in Miami denied Nova's motion to dismiss the litigation because she invoked her right to take leave before she was eligible for leave.
The issue hinged on the timing of her leave notification and the starting date of her leave.
Cellucci had worked for five months at Nova when she learned she was pregnant in November 2009. She would have been qualified to take FMLA leave on her due date but was short of the school's required 1,250 hours of employment when she told her supervisors of her plans.

Martinez said in a March 25 ruling that it made no sense to "require employees to give notice but not affording the protection for this assertion of their rights under the statute."

Attorney Richard A. Beauchamp, a partner with Panza Maurer & Maynard in Fort Lauderdale, represents the university on the issue. His motion cited several similar cases where courts ruled in favor of the employer.
He said the university doesn't comment on pending litigation.

Even though Martinez's ruling is case-specific, Morgado said it can be cited in similar cases of pregnant women who claim their employers have retaliated against them.

"This gives women some extra protection of not losing their jobs when they let their employer know they are pregnant. Some women are very nervous about that," Morgado said.

Labor and employment defense attorney Robin Taylor Symons, a partner at Gordon & Rees in Miami, notes Cellucci's case is in an early stage and all Martinez's ruling does is allow one count to move forward.
The order indicates an employee has a right to request FMLA leave before they become eligible without fear of retaliation.

The judge said this was clearly Congress' intent in passing law, noting lawmakers stated, "The lack of employment policies to accommodate working parents can force individuals to choose between job security and parenting."

Eligibility

Symons explained, "It doesn't wind the clock back and restart the clock in terms of eligibility, but it does impact the employee-employer relationship."

She noted that even if the ruling is not binding, other lawyers representing pregnant clients claiming FMLA discrimination will rely on it.

Pregnancy discrimination in the workplace is becoming more prevalent, said Fort Lauderdale employment attorney Donna Ballman who is not involved in the case.

"It has become in my view more blatant," she said. "I'm seeing a lot more pregnancy discrimination, and I don't know why. It seems like employers are just firing pregnant employees and saying, 'Damn the consequences.'??"
She said employers need to think twice about firing a pregnant employee because of the cost of retraining and the horrible message it sends to its staff.

"If they think other employees aren't watching how they treat people, then they are sadly mistaken," Ballman said.

She said employers who discriminate against pregnant women often will use the "suddenly stupid" defense.
"It's a classic. People who were stellar employees suddenly start getting written up," she said. "All of a sudden they become stupid."

In Cellucci's case, the reason was even more suspicious.

She was called into her supervisor's office and fired Feb. 25, 2010. Cellucci was told she had worked her maximum hours for the year, which according to university policy was 1,000 hours from her start date. The 1,250-hour rule applied to leave eligibility.

When Cellucci asked to see the policy, the university refused, saying it had an obligation to her since she had been terminated. Cellucci said she was even more taken back because her supervisors were women who she thought would be more understanding.

The university even fought Cellucci on her unemployment benefits, she said.

"I wasn't sure what I was going to do. I didn't know if I could get another job being four months pregnant," she said.

Her family coped financially. Cellucci's husband, Ryan, runs a food and beverage service at Sun Life Stadium.
Ballman said employers count on pregnant women, seniors and disabled people not to fight back.
"You are talking about people who are at their most vulnerable," she said. "They don't have the resources or the energy to fight."

Cellucci's case "certainly spotlights an issue where the perception is American employers are less protective of pregnant employees than their European counterparts," Symons said.

Cellucci now has her hands full with her 8-month-old son, Jacob, but she vows to continue to fight her firing.
"I'm really proud doing something for women's rights in South Florida, and I think other people will benefit from what I've been through," she said.

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