Here is the latest issue of “This & That” Tuesday. I hope you find it to be informative and useful.
You can always check out my website for upcoming speaking engagements that are guaranteed to be of value to business owners or for a list of topics that I can speak on at Chambers, Clubs, Business Associations, etc. More details about the events, topics and Human Resources 4U, in general, can be found on my website.
July 17 "How to Effectively Hire & Terminate Employees" sponsored by Chino Valley Chamber of Commerce.
Independent Contractor Fact Sheet
It is critical that you, the business owner, correctly determine whether the individuals providing services are employees or independent contractors. Generally, you must withhold income taxes, withhold and pay Social Security and Medicare taxes, and pay unemployment tax on wages paid to an employee. You do not generally have to withhold or pay any taxes on payments to independent contractors.
In determining whether the person providing service is an employee or an independent contractor, all information that provides evidence of the degree of control and independence must be considered.
Generally, the more “yes” answers you have, the more likely it is that a person is an Independent Contractor.
- Is the individual working on a discrete project that is limited in time (versus work that is ongoing and integral to the company’s normal business functions)?
- Does the work involve special skills and training not currently possessed by company employees?
- Does the work involve skills and training which the individual already possesses (versus skills for which the individual needs training from the company)?
- Does the individual pay for his/her own business expenses?
- Does the individual pay for his/her own travel?
- Is the individual responsible for his/her own federal and state taxes?
- Does the individual provide the company with invoices for fees (versus time sheets)?
- Does the individual offer his/her services to entities other than the company?
- Is the individual free to accept projects from other entities?
- Does the individual have a distinct occupation?
- Is the individual self-employed?
- Is the individual performing services for the company as part of his/her own independently established business?
- Are the manner and means for achieving the specified results left to the individual’s discretion?
- Are the individual’s hours, places, order and sequencing of the work left to his/her discretion?
- Is the individual free of extensive supervision, especially in regards to the means and manner of performance?
- Is the work performed at a location separate from the company premises?
- Does the individual have a significant investment in the facilities or equipment which will be used in performing the work (i.e., does s/he provide the necessary tools, equipment and material for the performance of the work)?
- Is the individual permitted to select, direct and pay anyone who will assist in achieving the desired results?
- Is dismissal of the individual premised on some type of failure to comply with an agreement, such as a failure to perform work (versus the individual being subject to “dismissal at any time for any reason”)?
- Is there an understood consequence to the individual for quitting prior to the completion of the project?
- Is the individual free to reject additional projects from the company?
CA Federal Court Finds IT Worker Exempt from Overtime Pay
Changes in technology and technology-related jobs occur rapidly; the law, however, moves slowly. For this reason, regulations regarding exempt status of workers are sometimes drafted with broad language to capture future changes in duties and positions not in existence at the time the regulations are implemented. Regulations regarding the exempt status of computer professional employees are one example. The regulations were implemented early in the information technology age in 1990 (before Google, Facebook, and even before e-mails became popular). However, a new decision applying the computer professional exemption under the FLSA, offers some clarity regarding positions that might not have existed in 1990.
In Curry vs. Matividad, plaintiff worked for defendant Matividad Medical Center, a county-operated health care facility. Following a promotion, he was reclassified as an exempt employee earning a salary in excess of $80,000/year. He brought suit alleging he was misclassified as exempt, asserting that his primary duty was merely “working on computer and server repair and functionality problems for individual employees,” a type of trouble-shooting the Plaintiff argued DOL classifies as non-exempt computer-related work. In analyzing the record, however, the Court determined the Plaintiff was more than a low-level trouble-shooter, and instead, performed “network analysis, testing, configuration, and modification” and thus “was a skilled employee as described under the computer employee exemption.”
Gaylord, Inc. to Pay $55,000 to Settle EEOC Religious Discrimination Lawsuit
A North Carolina corporation that manufactures, designs, and produces orthopedic and sports medicine products will pay $55,000 and furnish further relief to settle a religious discrimination lawsuit brought by the EEOC.
In its suit the EEOC alleged that Evelyn Lockhart, an employee who is a Christian, was discharged after she refused to work on a religious holiday. Lockhart has been a follower of the Christian Holiness faith for the last 33 years. As part of her sincerely held religious beliefs, Lockhart abstains from work on certain sacred days, which include four Holy Days – Passover, Pentecost, the Day of Atonement and the Last Great Day.
According to the EEOC's suit, Lockhart was hired as a sewing machine operator for Gaylord in Wadesboro, N.C., in September 2006. On or about Oct. 15 and again around Oct. 20, 2008, Lockhart asked Gaylord for a day off for the Last Great Day that occurred on Oct. 21. According to the complaint, Lockhart specifically informed her supervisor that she needed to be off that day to attend church yet Gaylord denied Lockhart's request to be off that day. When Lockhart did not report to work that day because of her observance of the holiday, Gaylord discharged her.
Such alleged conduct violates Title VII of the Civil Rights Act of 1964, which requires that employers make reasonable accommodations to employees' and applicants' sincerely held religious beliefs, as long as this poses no undue hardship. The EEOC filed suit after first attempting to reach a pre-litigation settlement through its conciliation process.
In addition to paying $55,000 in damages to Lockhart, Gaylord must also take other actions set forth in the two-year consent decree resolving the case, including adopting a formal anti-discrimination policy, which includes information regarding religious accommodations, and conducting annual training on Title VII and its prohibition against religious discrimination and retaliation in the workplace. Gaylord will also post a copy of its anti-discrimination policy at all of its facilities.
- According to DDI, 51% of 2012 new hires feel they were misled about the job expectations and 88% of those are looking to make a change.
- 60% of employers are having trouble attracting “high potential” employees and 55% of employers are having trouble retaining those employees.
- 7% of applicants come from referrals but they account for 40% of the hires
- 48% of employees say cash bonuses motivate them to refer job candidates
- Hires referred by other employees have a 47% retention rate after 3 years whereas job board hires only have a 14% retention rate.
- The Labor Department said that the number of people who quit their jobs in April jumped 7.2 percent to 2.25 million. That's just below February's level, which was the highest in 4 ½ years. This may indicate that people are more optimistic about making career moves now.
“I fear the day that technology will surpass our interaction. The world will have a generation of idiots.”