Category Archives: Employment Law

Guidance for Employers from the Dark Side

A long time ago in what seems like a galaxy far away, Congress passed the National Labor Relations Act. Since then, Congress has continued to pass laws governing the employee/employer relationship. In 1938, it passed the Fair Labor Standards Act; in 1964, it passed the Civil Rights Act; and in 1993, it passed the Family and Medical Leave Act. These acts and many others can make businesses feel like they have been thrown into a trash compacter or frozen in carbonate. Management attorneys, a.k.a the light side of the force, provide guidance and counsel to businesses and assist in navigating these laws which seem to appear and/or change as if powered by a hyper drive.

On Thursday, April 27, from 8:00 a.m. to 12:00 p.m. at Michael’s on East in Sarasota, businesses will have an opportunity to learn about recent developments and current trends related to wage and hour compliance, employee criminal conduct, and sexual orientation and gender identity not only from their Jedi, but also from a Sith, a.k.a. a plaintiff’s employment attorney. It is not often that businesses have an opportunity to learn from both sides of the Force.

This seminar will provide guidance in important areas of employment law to assist professional service providers in their role as employers. The workshop will include best practices from legal compliance and human resources perspectives, and will conclude with a Sith providing insight into employers’ mistakes that strengthen the dark side. This seminar is intended to be an interactive presentation with the aim of providing solutions to troublesome employment issues confronting law firms and other professional service providers. To learn more about this event and to register, visit the Sarasota County Bar Association website.

Disclaimer: This seminar does not have a Star Wars theme; I just watched The Force Awakens on HBO this weekend.

Jennifer Fowler-Hermes
(941) 552-2558

The above post was originally published on The Williams Parker Labor & Employment blog

Hurricane Update: Should I Pay Exempt Employees Who Miss Work Due to Bad Weather Conditions?

When it comes to deductions from exempt employees’ salaries it is easy to get into trouble.  The general rule is that an exempt employee is entitled to receive his or her entire salary for any workweek he or she performed work. This means, if the worksite closes for a partial week due to bad weather conditions (such as a hurricane), and the exempt employee has worked during that workweek, the employee is entitled to his or her full salary. However, if the employer has a leave benefit, such as PTO, and the employee has leave remaining, the employer can require the employee to use paid time off for this time away from work. If the employee does not have any remaining leave benefit, he or she must be paid.

If the worksite remains open during inclement weather and an employee is absent, the employee can be required to use paid time off.  If the employee does not have any paid time off remaining, the employer may deduct a full-day’s absence from the employee’s salary.

For a more detailed explanation see:

Jennifer Fowler-Hermes

This post was originally published on The Williams Parker Labor & Employment Blog, which focuses on the latest trends and developments concerning labor and employment law and provides commentary and analysis regarding best practices for employers, HR professionals, C-level executives, and boards of directors. Visit the blog to read more and subscribe to receive the latest updates.

DOL Issues Final Rule Revising Overtime Regulations

On May 18, 2016, the Department of Labor raised the minimum salary level that certain employees must be paid to qualify as exempt from the overtime pay requirements of the Fair Labor Standards Act. Under current regulations, executives (supervisors), administrative employees and professionals, must both perform “exempt” duties as defined by the DOL and be paid a guaranteed salary of at least $455 a week ($23,660 annually). This new regulation significantly increases the salary threshold to $933 a week ($47,476 annually), however, it does not alter the primary duty test. The federal government predicts that the new rule will result in companies having to pay an additional 4.2 million employees overtime, boosting wages for workers by $12 billion over the next ten years.

Additionally, as noted in comments included in a recent Law360 article, the DOL’s rule, while potentially extending overtime protections to 4.2 million more employees, may also have adverse effects for certain employees. In an effort to offset costs businesses may incur as a result of the new rule, both in terms of the expense associated with ensuring compliance, as well as having to pay overtime to formerly exempt employees or sufficiently increasing an employee’s salary so as to maintain the exemption, certain employers may reduce rates of pay, cut back scheduled hours to reduce risk of overtime, or offer less generous benefits to non-exempt employees.

A link to the new rule can be found here:

Related guidance issued by the DOL can be found here:

Lindsey L. Dunn
(941) 552-2556

Independent Contractor or Employee? That is the Question!

A person can provide services to a company as an employee or an independent contractor depending upon the nature of the relationship between the service provider and the company. Misclassification of employees as independent contractors remains a primary focus of many government agencies, including the IRS, U.S. Department of Labor, Florida Department of Economic Opportunity Reemployment Assistance Programs, and Florida’s Division of Workers’ Compensation.  Investigations by these agencies can be extremely costly, time-consuming, and even lead to personal liability and criminal penalties!

The presentation in the following link explains the detailed federal and Florida tests that are used by these four agencies to properly classify service providers.  It also provides practical examples in which the tests can be applied.  Additionally, the presentation includes guidance to help mitigate the potential for employer liability regarding other wage and hour complexities and pitfalls.

Independent Contractor or Employee? That is the Question!

Gail E. Farb
(941) 552-2557

Update – Employer Reimbursements of Individual Health Policy Premiums Temporary Relief Issued for Small Employers – until June 2015 And IRS clarifies reimbursement rules for 2% Sub S shareholders and for Medicare & Medigap premiums & TRICARE uncovered expenses

Small Employer Relief Until June 30, 2015

In November we alerted you that employers that reimburse employees for the cost of purchasing individual health insurance policies risk being subject to ACA penalties of $36,500 per year per person.  Here is a link to our prior alert:

On February 18, 2015, the IRS issued temporary relief for small employers (those that don’t qualify under the ACA as an “applicable large employer”) from these enormous penalties.  The temporary relief ends June 30, 2015.

Under the soon to be published IRS notice (Notice 2015-17), small employers that aren’t classified as “applicable large employers” will not be hit with the ACA $36,500 per person penalty for either 2014 or for the period from January 1, 2015 through June 30, 2015.  Starting July 1, 2015, the penalties will apply, so almost all employers need to stop premium reimbursement policies to avoid penalties.

To be eligible for the temporary relief, an employer is considered a small employer if it does not employ an average of 50 or more full-time employees (including full-time equivalent employees) on business days during the preceding calendar year.  An employer’s small employer status is looked at separately for 2014 and 2015 for purposes of this temporary relief.

An employer that qualifies for the temporary relief does not need to file Form 8928 reporting failure to satisfy the mandates of providing ACA compliant coverage for the period that the employer is eligible for the relief.

Reimbursement of 2% Sub S Shareholders

The new IRS notice also provides relief or clarification for employer health premium reimbursements provided to 2% Sub S shareholders.  Until further guidance is published by the IRS, and in all events through the end of 2015, health insurance premium reimbursements to 2% Sub S shareholders will not trigger the $36,500 ACA penalties.

The exception for 2% Sub S shareholders does NOT apply to reimbursements provided to other employees of the Sub S employer.  As a result, reimbursements to the non-2% Sub S shareholder/employees will trigger the ACA penalties (but may be temporarily suspended until June 30, 2015 if the employer is not an applicable large employer – see above).

Reimbursement of Medicare, Medigap and/or TRICARE Premiums

The IRS notice also addresses employer arrangements that reimburse employees for Medicare, Medigap and TRICARE premiums.  The IRS notes that the reimbursement of Medicare premiums by an employer may violate the Medicare secondary payer rules which are not tax rules but impose severe penalties.  On the tax side, the IRS advises that an employer program that reimburses Medicare, Medigap or TRICARE premiums (or uncovered medical expenses) without the employer offering the employee coverage under an employer sponsored minimum value health plan will trigger the $36,500 per person per year penalty.  The exception that allows an employer to reimburse the Medicare, Medigap or TRICARE premiums (or medical expenses) without triggering the ACA $36,500 penalty requires the employer to offer employer health coverage and comply with a number of other very specific requirements.  For more information, give us a call or email.

Carol L. Myers

Federal Agencies Issue Warning to Employer Clarifying the Dangers of Reimbursing Employees for the Cost of Individual Health Insurance Premiums and of Offering Cash Incentives to Opt Out of Employer Sponsored Coverage

In recently issued FAQs (which stands for “Frequently Asked Questions”), the three agencies in charge of compliance with the Affordable Care Act (the “ACA”) alerted employers to three practices that will cause the employer to be subject to ACA penalties of $36,500 per year per person. Importantly, this $36,500 per year penalty applies to each individual affected by the ACA failure.  As a result, it can be applied and calculated counting both employees and dependents whose coverage has been affected by the practices described in the FAQs.

Notably, the only small employers excepted from these requirements are employers who have only one employee, and governmental employers.  For this purpose, the number of employees are counted looking at all related controlled group companies together.  The annual $36,500 per affected individual penalty must be self reported and paid by the employer (on IRS Form 8928).

First, the FAQs alert employers that reimbursing employees for the cost of premiums to purchase individual health insurance policies violates the requirements of the ACA.  The FAQs emphasize that the practice violates the ACA regardless of whether the reimbursements are made on a pre-tax or post-tax basis.

Second, the FAQs alert employers that offering a cash incentive to high risk / high claim individuals to opt out of the employer health coverage violates the ACA.  The FAQs emphasize that it does not matter whether (i) the cash incentive is offered on a pre-tax or post-tax basis, (ii) the employer is involved or not involved in the employee’s selection of alternate coverage, or (iii) the employee obtains individual health insurance.  If the cash incentive option is offered to ALL eligible employees, the violation of the ACA will not occur.

Lastly, the FAQs alert employers that cancelling group health policies and setting up instead a reimbursement program to coordinate with individual insurance policies that employees purchase with premium tax credits on the Marketplace exchange is not permissible.  The FAQs point out that the employees who are covered by the reimbursement programs will not be eligible for premium tax credits and that the reimbursement arrangement itself will violate the requirements of the ACA triggering the $36,500 per person per year penalties on the employer.

For more information, see

Carol L. Myers