department of labor – Cooper Mann Consulting

The Department of Labor is finalizing a rule to update overtime protections for workers. “In total, the new rule is expected to extend overtime protections to 4.2 million more Americans who are not currently eligible under federal law, and it is expected to boost wages for workers by $12 billion over the next 10 years.”

Source: Taking Action to Expand Overtime Protections | whitehouse.gov

This is a difficult subject for everyone involved – workers and business owners alike. Increases in minimum wage, increases in employee health care costs, and adjustments to wage and hour regulations all serve complicate and cost businesses more. Fair payment for time worked, a living wage, and protections for workers from employer abuse are things that are expected – deservedly so – by employees. Definitions vary, as do circumstances, so a one-size rule never really fits all and someone, somewhere, feels the burn.

A USA Today article on the subject describes Labor Secretary Thomas Perez as saying “the salary threshold was originally intended to exempt high-paid executives but instead has denied overtime to low-level retail supervisors and entry-level office workers who often toil 50 to 70 hours a week.”

On the other hand Dan Bosch, head of regulatory policy for the National Federation of Independent Business, was described as saying that “many small businesses can’t absorb the added cost and will instruct employees to work no more than 40 hours a week, bringing on part-time workers to pick up the slack”. From Trey Kovacs, policy analyst with the Competitive Enterprise Institute: “The Obama rule puts a huge cost and regulatory burden on employers, who will face pressure to cut back on benefits and full-time employees”.

A bill was introduced on Thursday by Republican congressional leadership hoping to block the proposed overtime rule. The proposed legislation, Protecting Workplace Advancement and Opportunity Act, is intended to ensure that the Department of Labor takes a “balanced and responsible approach to updating federal overtime rules.” Sponsors of the legislation include members of the Senate Committee on Health, Education, Labor, and Pensions and the House Committee on Education and the Workforce.

Part of the bill’s consideration may be the burden of record keeping and information management that just keeps growing ever larger. The current DOL changes, for example, now suggest that businesses must keep time and attendance records in detail for their salaried employees who might qualify for overtime compensation. Getting employees to keep time cards or complete timesheets may not be an easy thing to do, yet punching a timeclock and tracking their hours may become their new normal. Some employers, on the other hand, will elect to simply raise workers’ base pay to the new threshold, avoiding paying the overtime and skirting the need to keep detailed time records.

The extension of overtime protection to another 4.2 million Americans, and boosting wages by $12 billion over the next 10 years is the expectation for the new rule’s impact, although opponents suggest that employment (and employers) will suffer, reducing their workforces while absorbing costly HR management processes just in order to comply.

The rule is likely to touch nearly every sector of the U.S. economy, with the most notable adjustments occurring with nonprofits, retailers and hospitality (hotel and restaurants), as these are the industries generally having management-level workers whose salaries are at or below the new threshold. Whether the outcomes of the rule will be as expected remains to be seen, but it is certain that many businesses must now put in place software, systems and processes which will help not just help them comply with new wage and hour rules, but deliver enough intelligence to support better personnel management, employee scheduling and labor cost containment.

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Courier or Messenger as Contractor or Employee? Compliance with Department of Labor

When it comes to dealing with the Department of Labor, there is only one prudent approach: keep meticulous records and self-audit regularly. It’s not that the DOL is a particularly frightening group, but increasingly public conflicts suggesting wage theft and avoidance of employer responsibilities continue to shine a bright light on the gravely imperative nature of keeping the right records and operating within the proper constraints. It is the DOL’s persistence in the auditing of independent contractor relationships which has put a tremendous amount of pressure on businesses which operate with primarily contracted workers.

The issue is not exclusive to any particular industry, but it seems that there are numerous rich targets in the area of logistics, as recent decisions impacting FedEx and UPS reflect. Described in an MSNBC article quoting David Weil’s book “The Fissured Workplace”, the decisions supporting the DOL in the 9th Circuit “further undermine the “devolution of the proletariat” — corporate America’s ongoing effort to shed front-line, often low-wage employees through independent contracting, subcontracting, and franchising arrangements”. The two federal appellate decisions disputed FedEx’s contention that its drivers in California and Oregon were properly classified as independent contractors. While there are many situations where the argument supports fair treatment for workers who operate more as employees than contracted workers, there is an equally substantial base of business where the performers are contracted and independent and should remain free to operate as such.

One of the industries directly in the crosshairs of the Wage and Hour Division of DOL is the courier and messenger industry. Couriers and messengers pick up and deliver messages, documents, packages, and other items – generally between offices or departments within a business, or directly to other businesses or individuals – and do this while traveling by foot, bicycle, motorcycle, public transportation or private vehicle. The Bureau of Labor statistics in 2012 indicated that almost 25% of those classified as couriers and messengers were local messengers and delivery providers, and that the highest concentration of these providers is in New York.

So what’s the deal with DOL versus courier/messenger services and their clients as it relates to the “contractor independence” issue? Well, the initial approach by the DOL is often to consider the hiring authority (the client) as a Professional Employer Organization or simply as an employer. This approach is often forwarded regardless of the provider’s owner/operator status, and may be due to a lack of supporting evidence that the courier was actively soliciting additional business from other sources (which is generally not the problem of the client, but in this case could be). There is a requirement to substantiate not only the client’s position that he is not the employer, but to satisfy recordkeeping for the courier or messenger, as well, proving independence and having the necessary paperwork and proof to support the claim.

In a business where people are frequently on the move, scheduling jobs between pickups and deliveries, there isn’t a lot of time to spend filling out paperwork and getting written agreements. These folks are working even as they’re scheduling more work, and a lot of this activity is done via text or telephone while riding a bicycle. The circumstances of how this industry works makes compliance a particularly difficult task, and the DOL doesn’t have to schedule audits and compliance visits – they can approach a business at any time and request to review records, observe activities, and more.

Given the frequency of such investigations and audits, every business in the industry should be looking for a simple and foolproof solution to keeping the right paperwork and records that will support the business operator claim of independence and protect them from unnecessary cost or litigation. This is where an accounting professional or consultant may provide assistance, identifying the tools and developing the processes to ensure proper reporting and compliance with regulations on both sides of the transaction. Without the proper documentation and evidence supporting the position of the client as well as the provider (the courier/messenger), both parties may end up finding themselves in an unintentional and costly relationship.

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Courier or Messenger as Contractor or Employee? Compliance with Department of Labor

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