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Old 12-01-2012, 05:24 PM
 
Location: Warren County, NJ
708 posts, read 862,263 times
Reputation: 1095

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Most retailers have been doing this for some time.I am scheduled 32.5 hrs a week,but the manager allows me and others he likes,(and who actually do the work ) stay to 40hrs.But the minute you reach 40,punch out and go home or you are in for a world of hurt.I was at a Home Depot not too long ago and I overheard a woman telling her co-worker that her manager threatened to write her up because she stayed an extra 15 min. the previous night.I smiled because I know where she is coming from.
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Old 12-01-2012, 05:30 PM
 
83,048 posts, read 80,524,367 times
Reputation: 59062
Emloyers who get caught up in not paying overtime are in a world of hurt.

Even if a company has legal insurance to cover legal expences it wont cover wage hour law cases if you lose. Not paying wages is criminal so insurance will not cover it
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Old 12-01-2012, 07:27 PM
 
6,473 posts, read 10,890,727 times
Reputation: 6373
Quote:
Originally Posted by mathjak107 View Post
many jobs that fell under "exempt" and were not paid overtime are now reclassified as hourly and get ot.

all the lawyers that used to chase ambulances gave that up. the place to be today is a wage/hour attorney.

not only is it class action ,its almost impossible to defend against .an employer never wants it to go to court. it carries horrific fines and penalties.

my son is a wage/hour attorney but only represents employers . he said its so horrific to an employer that only 1% of all their cases make it to court.

the days of dreaming up exempt positions are over for employers and just because the employer catagorizes a position as exempt from over time does not mean a judge agrees.

employers used to stretch job descriptions to the point they can squeeze the employees in as an exempt position.

we just saw a new york judge blow the doors off my own industry.

inside sales in our industry was classified as an exempt position based on the fact we make decisions.

a ny judge said that pricing decisions dont qualify as management decisions and ruled that everyone involved in that case has to be payed overtime even if they agreed that their salary was for a 50 hour week.

unless their checks showed so much at overtime and so much straight time the amount for 50 hours could be the same total but the fact its not broken out on the check was a big issue.

now that the judge ruled it wasnt an exempt position their checks only showed a flat rate and so they had to get overtime for each additional hour over 40..

just like you cant agree to work for less than min wage you cant agree to work for no overtime as you must be paid that by the employer.


so it cost the employer overtime for every employee, huge fines and penalties and as part of the law the employer has to pay everyones legal bills too.


unless a position definately falls under exempt its a dangerous game trying to classify employees as such if they dont properly fit the classification as exempt without a shadow of a doubt.
So, does this mean that retail managers would get overtime as well, even though they're supposed to be salaried?

What falls under exempt nowadays?
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Old 12-01-2012, 07:33 PM
 
6,473 posts, read 10,890,727 times
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Quote:
Originally Posted by Philip T View Post
Would be so much cleaner if businesses would let the workers be legit Independent Contractors.

I do, and we tend to follow the law and restrictions very tightly.

Works out Very Well for the business(es) and the Worker Bees.
The IRS and nearly all 50 state tax agencies have very strict guidelines regarding this.

You cannot have your secretary, receptionist or regular support staff person as independent contractor.

IC's do NOT report to you and do NOT have to work on the premises to fulfill the project.
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Old 12-01-2012, 08:56 PM
 
5,359 posts, read 10,246,033 times
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Quote:
Originally Posted by marilyn220 View Post
The IRS and nearly all 50 state tax agencies have very strict guidelines regarding this.
Not Rocket Science.

Independent Contractor (Self-Employed) or Employee?

Quote:
You cannot have your secretary, receptionist or regular support staff person as independent contractor.
Why do you think this? Answering services, mail services, cleaning services can and frequently are ALL ICs.

You can have any service done by an IC. Just meet compliance.

Quote:
IC's do NOT report to you and do NOT have to work on the premises to fulfill the project.
[/quote]

Fine by me, but typically the invoice is a form of report. And some projects HAVE to be done on set sites -- like typical construction projects, for example. The plumbers, electricians, on and on tend to ALL be ICs from the General Contractor.

Why do you want to make up stuff?
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Old 12-01-2012, 09:12 PM
 
6,473 posts, read 10,890,727 times
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Quote:
Originally Posted by Philip T View Post
Not Rocket Science.

Independent Contractor (Self-Employed) or Employee?



Why do you think this? Answering services, mail services, cleaning services can and frequently are ALL ICs.

You can have any service done by an IC. Just meet compliance.

Fine by me, but typically the invoice is a form of report. And some projects HAVE to be done on set sites -- like typical construction projects, for example. The plumbers, electricians, on and on tend to ALL be ICs from the General Contractor.

Why do you want to make up stuff?
Not making up anything. This is what was told to me by not only an IRS agent, but also an accountant.

You can play games with the tax man if you want to, but trust and believe that it will come back to bite you later and heavy fines will be paid.

If you hire INDIVIDUALS to do traditional support staff positions as independent contractors, the IRS pays close attention to this.
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Old 12-02-2012, 02:28 AM
 
83,048 posts, read 80,524,367 times
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Quote:
Originally Posted by marilyn220 View Post
So, does this mean that retail managers would get overtime as well, even though they're supposed to be salaried?

What falls under exempt nowadays?
very detailed
Fair Labor Standards Act (FLSA) Coverage (Exempt vs. Non-Exempt -- The Online Wages, Hours and Overtime Pay Resource

more a summary

http://employment-law.freeadvice.com...-employees.htm
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Old 12-02-2012, 02:44 AM
 
83,048 posts, read 80,524,367 times
Reputation: 59062
Quote:
Originally Posted by marilyn220 View Post
Not making up anything. This is what was told to me by not only an IRS agent, but also an accountant.

You can play games with the tax man if you want to, but trust and believe that it will come back to bite you later and heavy fines will be paid.

If you hire INDIVIDUALS to do traditional support staff positions as independent contractors, the IRS pays close attention to this.
boy do they ever. our outside sales force were hired as independ. contractors.

we had the irs call one day ,they just asked for the receptionist and asked if so and so had a desk assigned to them at the office that they used when they came in.

the irs rules pretty much say whether a person is an independent or should be an employee .



there are 3 main areas looked at.

"1. Behavioral: Does the company control or have the right to control what the worker does
and how the worker does his or her job?
2. Financial: Are the business aspects of the worker’s job controlled by the payer? (these
include things like how worker is paid, whether expenses are reimbursed, who provides tools/
supplies, etc.)
3. Type of Relationship: Are there written contracts or employee type benefits (i.e. pension
plan, insurance, vacation pay, etc.)? Will the relationship continue and is the work performed a
key aspect of the business?”


The IRS says “an employee is generally subject to the business’s instructions about
when, where, and how to work. All of the following are examples of types of instructions about how
to do work:
• When and where to do the work.
• What tools or equipment to use.
• What workers to hire or to assist with the work.
• Where to purchase supplies and services.
• What work must be performed by a specified individual.
• What order or sequence to follow when performing the work.”


companies that violate the law mis-classifying employees so they dont have to pay min wage, overtime or employment taxes face not only horrific wage hour law suits but also criminal charges for denying proper pay .
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Old 12-02-2012, 07:21 AM
 
6,473 posts, read 10,890,727 times
Reputation: 6373
Thank you so much for listing this mathjak. I'm going to read it more thoroughly later, but I do remember reading just a couple of years that the IRS was going to "reclassify" what an IC is due to rampant abuse during this horrible economy. I'm more interested in how the new laws work for people working management in retail. I'd like to get back into working high end retail as a manager, but if I'm going to be pulling in 60 hour weeks, then I'd like to know if I'm legally entitled to overtime these days. You weren't in the past.

Los Angeles employers are NOTORIOUS for these types of abuses, especially the small businesses ran by foreigners. They try to play games with tax laws, but not only will the IRS come after them, so will California's Franchise Tax Board. The Franchise Tax Board is more ruthless than the IRS and tax debts are never relinquished. There is also the Labor Department agencies of both the state and feds that get involved with this as well.

It might go on here in NYC too, but I haven't heard of it. It was fairly common over there though.

Quote:
Originally Posted by mathjak107 View Post
boy do they ever. our outside sales force were hired as independ. contractors.

we had the irs call one day ,they just asked for the receptionist and asked if so and so had a desk assigned to them at the office that they used when they came in.

the irs rules pretty much say whether a person is an independent or should be an employee .



there are 3 main areas looked at.

"1. Behavioral: Does the company control or have the right to control what the worker does
and how the worker does his or her job?
2. Financial: Are the business aspects of the worker’s job controlled by the payer? (these
include things like how worker is paid, whether expenses are reimbursed, who provides tools/
supplies, etc.)
3. Type of Relationship: Are there written contracts or employee type benefits (i.e. pension
plan, insurance, vacation pay, etc.)? Will the relationship continue and is the work performed a
key aspect of the business?”


The IRS says “an employee is generally subject to the business’s instructions about
when, where, and how to work. All of the following are examples of types of instructions about how
to do work:
• When and where to do the work.
• What tools or equipment to use.
• What workers to hire or to assist with the work.
• Where to purchase supplies and services.
• What work must be performed by a specified individual.
• What order or sequence to follow when performing the work.”


companies that violate the law mis-classifying employees so they dont have to pay min wage, overtime or employment taxes face not only horrific wage hour law suits but also criminal charges for denying proper pay .
Good. Walmart would knowingly hire contractors that paid their employees below minimum wage or no overtime. They're not the only company that's doing it either.
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Old 12-02-2012, 08:35 AM
 
Location: Log "cabin" west of Bangor
6,373 posts, read 7,373,735 times
Reputation: 12630
One of the biggies for classifying independent contractors is whether or not the individual is able to engage in the same work for other companies. If the company dictates uniforms, work times and processes, vehicle signage, AND *prohibits* the individual from accepting other work from other companies then the person is an employee and not an independent contractor. My wife is an IRS certified tax preparer, and this is one of the things that the Revenuers have been harping on lately.

See also the relatively recent suits against FedEx by drivers whom FedEx claimed were 'independent contractors'.
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