IRS Issues New Tables for 2018 Tax Withholding

Starting Feb. 15, 2018, employers must use new tables to determine how much income tax to withhold from their employees’ paychecks. The Internal Revenue Service (IRS) issued the required new tables, in Notice 1036, on Jan. 9, 2018. The notice contains early release copies of the “Percentage Method Tables for Income Tax Withholding” that will appear in IRS Publication 15 (Employer’s Tax Guide).

According to the IRS, Notice 1036 is the first in a series of steps that the agency will take to help employers improve the accuracy of their tax withholdings under changes made by a new tax reform law, the Tax Cuts and Jobs Act, enacted on Dec. 22, 2017.

New Tables Work with Existing Forms W-4 for 2018

The new tables in Notice 1036 are designed to work with the Forms W-4 that employees have already filed with their employers to claim withholding allowances for 2018. Thus, employers do not need to obtain updated Forms W-4 from their employees to start using the new tables.

For 2019, however, the IRS is revising Form W-4 to more fully reflect the new law and to help individuals determine whether to adjust their withholding. Once released, the revised Form W-4 can be used in 2018 by employees starting a new job and by existing employees who wish to update their withholding in response to the new law or changes in their personal circumstances. Until the revised Form W-4 is released, employees and employers should continue to use the 2017 Form W-4.

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DOL Announces New Standard for Unpaid Interns

On Jan. 5, 2018, the U.S. Department of Labor (DOL) announced that it would adopt a new standard for determining whether interns and students are “employees” who must be paid under the Fair Labor Standards Act (FLSA).

The DOL clarified that, going forward, it would abandon its six-part test and instead adopt the “primary beneficiary” test used by federal courts.

The six-part test provides that an intern at a for-profit company is an employee unless all six factors of the test are met. The primary beneficiary test has a more flexible approach, focusing on whether the intern or the business benefits more from the relationship.

The Old Six-part Test

The six-part benefit test is very specific and allows for interns to be unpaid only if all of the following factors are met:

  1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training that would be given in an educational environment;
  2. The internship experience is for the benefit of the intern;
  3. The intern does not displace regular employees, but works under close supervision of existing staff;
  4. The employer that provides the training derives no immediate advantage from the activities of the intern; and, on occasion, its operations may actually be impeded;
  5. The intern is not necessarily entitled to a job at the conclusion of the internship; and
  6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

The Primary Beneficiary Test

The primary beneficiary test looks at the “economic reality” nature of the employment relationship and includes seven factors to consider. However, unlike the six-part test, these factors provide only a reference frame to determine who is benefiting more from the intern-employer relationship.

The seven factors are:

  1. The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee—and vice versa.
  2. The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions.
  3. The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.
  4. The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar.
  5. The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.
  6. The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.
  7. The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.

Not every factor must be met, and not all factors must be given the same weight during the analysis. Instead, the courts will consider these seven factors and evaluate whether, in the totality of the circumstances, the employer is benefiting more from the relationship than the intern is. When an employer is the primary beneficiary of the relationship, the intern is an employee for purposes of the FLSA. When the intern is the primary beneficiary, he or she is not considered an employee under the FLSA.

More Information

Please contact Hierl Insurance Inc. for more information about compliance with FLSA issues.

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DOL Reintroduces 17 Opinion Letters

On Jan. 5, 2018, the U.S. Department of Labor (DOL) reintroduced 17 opinion letters. The letters were introduced by the Wage and Hour Division during the George W. Bush administration in response to specific employer compliance questions, such as whether “on-call” hours for ambulance personnel are considered as compensable time under the Fair Labor Standards Act (FLSA). The letters were withdrawn in 2009, shortly after their introduction.

Addressing compliance questions through opinion letters is a more relaxed approach than the administrative interpretations issued by the Obama administration.

Opinion Letters

Opinion letters provide the DOL’s official opinion on how labor and employment laws apply in specific situations.

The DOL issues opinion letters after receiving an employer’s request for clarification on how the law should be interpreted in specific scenarios. For example, multiple opinion letters present the DOL’s opinion on whether FLSA exemptions apply to specific employment positions.

As a result, opinion letters are fact-specific and employers can rely on them for guidance to the extent that the facts in their circumstances align with the scenarios described in the letter.

Publishing opinion letters is a labor-intensive process and employers that request one may need to wait several months to receive a response from the DOL. In addition, while the DOL reviews all opinion letter requests, it has traditionally only answered a few, at its discretion. The DOL has published instructions on how to request opinion letters on its website.

Impact on Employers

Opinion letters can be extremely helpful for employers that are trying to understand their legal responsibilities, particularly in areas where the law seems to be outdated or where compliance with one legal obligation interferes with compliance with another.

Indeed, employers that receive an answer to their request can rely on the answer they receive in their efforts to comply with their legal obligations. Employers are also encouraged to review past opinion letters and other DOL guidance to obtain a clearer understanding of their obligations.

However, an employer that seeks the DOL’s opinion regarding a specific situation should understand the risk that the DOL may not agree with its practices, so employers should consider this alternative carefully.

In addition, while employers can rely on an opinion letter, employers should also remember that opinion letters are merely guidance—they are not the law, and they are not binding. This means that DOL inspectors, auditors and judges may disagree with opinion letters and find noncompliance even when the employer is following the advice given by an opinion letter.

Good Faith Defense

However, employers that rely on opinion letters may be able to establish a good faith defense under the law. The good faith defense principle allows noncompliant employers to minimize the risk of penalties if they can prove they were making an honest effort to comply with the law.

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Compliance Overview: FLSA - Compensable Travel Time

The Fair Labor Standards Act (FLSA) regulates what constitutes compensable time or hours worked. Under the FLSA, compensable time includes all work an employer “suffers or permits” its employees to work. This may occasionally include an employee’s travel time.

In addition, a workday begins when an employee starts their principal activity and ends when he or she finishes his or her last principal activity of the day. Therefore, the amount of compensable time during a workday may be longer than the employee’s scheduled shift, hours, tour of duty or production line time.

The FLSA also dictates that employers must pay their employees for all hours worked. An employee’s pay must be at least the current federal minimum wage rate for the first 40 hours of work during a workweek and one and one-half times his or her regular rate of pay for any hours he or she works over 40 during a workweek.

This Compliance Overview provides general information relating to compensable travel time under the FLSA.

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HRL - Employers - Happy

Safety Focused Newsletter - January 2018

Common Reasons Workplace Hazards Go Unreported

In order to ensure a safe and healthy workplace, organizations rely on their employees to report safety concerns. While hazard reporting is critical for discovering and addressing risks, many employees avoid it. The following are some reasons why workplace hazards go unreported:

  • Employees lack the time. It can be easy to be distracted by daily work and not take the time to fulfil extra responsibilities. However, if you notice a hazard, it’s important to notify your supervisor to ensure the safety of you and your co-workers.
  • Employees don’t know how to report the hazard. Sometimes employees may notice a safety issue, but don’t report it because they don’t know how. In these instances, it’s important to ask your supervisor to teach you hazard reporting processes.
  • Employees are concerned about getting in trouble. If a hazard is the result of negligence, employees may worry about repercussions for identifying an issue. However, hazard reporting isn’t about discipline, but rather prevention and correction. Employees should feel empowered to speak with their supervisors about workplace issues without worrying about getting in trouble.

When it comes to hazard reporting, employees should be proactive instead of waiting for an inspection to take place.

Working Safely in the Cold

Employees that work outside in the winter months are at risk of serious health problems, including hypothermia, frostbite, dehydration and muscle injuries. What’s more, frigid temperatures can also cause additional pain for those who suffer from arthritis and rheumatism.

Common symptoms of cold-related illnesses and injuries include uncontrollable shivering, slurred speech, clumsy movements, fatigue, confusion, white or grayish skin, skin that feels waxy and numbness.

To reduce the risk of cold-induced injuries, consider doing the following:

  • Layer clothing to keep warm enough to be safe, but cool enough to avoid perspiring excessively. Layered clothing should contain the following:
    • An inner layer of synthetic weave to keep perspiration away from the body
    • A middle layer of wool or synthetic fabric to absorb sweat and retain body heat
    • An outer layer designed to protect from wind chill and allow for ventilation
  • Wear a hat.
  • Place heat packets in gloves, vests, boots and hats to add heat to the body.

It’s important to note that many people do not notice they are suffering from cold-related illnesses because their tissue is numb. Therefore, it is wise for employees to check on each other periodically when working outdoors in the cold.

If employees experience any symptoms of cold-related illnesses and injuries, they should get indoors, alert their supervisor and call for medical attention if symptoms do not subside.

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Compliance Bulletin: 2018 Minimum Wage Rates

The current federal minimum wage rate is $7.25 per hour. However, many states have adopted minimum wage rates higher than the federal rate. When the state rate and the federal rate are different, employers must pay their employees the higher rate.

Affected employers should review their employees’ pay rates and update their minimum wage poster notices as necessary to ensure compliance with local wage and hour regulations.

Download the following PDF for helpful charts and tables with wage rate information by state.

 


Cyber Risks & Liabilities - January/February 2018

Troubling Lack of Cyber Concern by CFOs

Gone are the days when chief financial officers (CFOs) solely had to focus on managing their organization’s financial risks. These days, CFOs need to think about the costs of cyber security as well as the costs associated with not having enough of it. When their security tools are inadequate or threats go unnoticed, there is an increased risk of incidents that can costs thousands or millions of dollars in repairs, lost business and reputation. CFOs need to apply new strategies when it comes to tackling cyber risks.

Work With the Chief Information Security Officer

According to recent data, 39 percent of IT workers don’t believe their senior management understands the impact that a security breach could have on their company’s reputation. CFOs should become active members of their security teams, instead of passive observers, in an effort to protect their revenue with a more focused and effective cyber security plan. The most effective partnerships involve weekly cyber exposure reviews with management and IT.

Invest in IT

A recent report found that firms that invest more in IT security experience an average of 6.8 fewer breaches and save more than $5 million. With the growing number of available devices that employees can use to stay connected and do their jobs, new approaches are needed to deal with increased cyber exposure that may have been more easily contained in the past.

Be Accountable

CFOs need to realize how cyber risk affects financial risk. According to a recent study by Ponemon Institute, data breaches result in an average stock price decline of 5 percent and an average revenue decline of $3.4 million. CFOs cannot manage risks of that magnitude by themselves. It is in the best interest of the entire company if its CFO partners with others in the organization who have a vested interest in managing cyber risk.

The Biggest Cyber Security Disasters of 2017

Like 2016 before it, 2017 was not without its share of cyber security incidents—incidents that impacted companies of all sizes and affected multiple industries. The following are some of the biggest cyber security disasters of 2017:

  • WannaCry—Using a tool that was allegedly stolen from the U.S. National Security Agency, cyber criminals exploited a flaw in Microsoft’s Windows system in order to spread malware dubbed WannaCry. The attack, which took place May 12, 2017, has impacted over 200,000 users in at least 150 countries.
  • Equifax—In September of 2017, Equifax, one of the largest credit reporting agencies in the United States, was the victim of a massive cyber attack. This attack compromised the personal information of over 143 million people.
  • Yahoo—In late 2016, Yahoo reported more than 1 billion user accounts were impacted by a 2013 breach. Later in 2017, it was revealed that over 3 billion Yahoo accounts were compromised.
  • Verizon—In July of 2017, it was reported that 14 million Verizon subscribers may have been affected by a data breach. The majority of those impacted by the breach were individuals who had previously contacted Verizon customer service.
  • Gmail—In May of 2017, it was revealed that Gmail users were targeted in a sophisticated phishing scam. The scam sought to gain access to accounts through a third-party app. Over 1 million users have been impacted.

Trump Administration Releases Rules on Disclosing Cyber Flaws

The Trump administration publicly released its rules on whitehouse.gov for deciding whether to disclose cyber security flaws or keep them secret. In doing so, the administration hopes to bring more transparency to its cyber processes.

The U.S. government initially created the Vulnerabilities Equities Process (VEP) under former President Barack Obama, to determine what to do with discovered flaws. The process was designed to balance law enforcement’s and U.S. intelligence officers’ desires to hack into devices with the intention to warn manufacturers of the need to patch holes in their security. However, the government has attracted criticism for jeopardizing internet security by stockpiling detected cyber vulnerabilities in order to preserve its ability to launch its own attacks on computer systems.

The new Trump administration charter explains how the VEP functions and names the agencies involved in the vulnerability reviews, including intelligence agencies as well as several civilian departments that include the Departments of Commerce, Treasury, Energy and State.

The National Security Agency is the executive secretariat of the interagency group. Its job is to coordinate debates over flaws that the various agencies submit in case there is a disagreement about whether to disclose them. If the disagreements cannot be reconciled, the group will vote on whether to disclose or retain the flaws.

The new rules also require the creation of an annual report to provide metrics on the amount of flaws discovered, retained and disclosed. Portions of the report are to be made public. Decisions to retain vulnerabilities are to be reconsidered every year.

According to White House security coordinator Rob Joyce, the revised rules are intended to shed light on the process for how various federal agencies weigh the costs of keeping a flaw secret. Joyce said the rules are the most sophisticated in the world and that they set the United States apart from most other nations.

More than 90 percent of flaws are ultimately disclosed, according to Joyce, although critics argue that they’re not shared quickly enough.

 


Safety First - January 2018

According to NORC at the University of Chicago, 75 percent of the Americans affected by substance abuse are active in the workforce, and they’re more likely to seek treatment if it is initiated by their employer. Jan. 22-28 is National Drug and Alcohol Facts Week. Take this opportunity to educate your employees about the dangers of substance abuse with these and many more employee communication safety resources available from Hierl Insurance Inc.:

Playing It Safe

Struggling with Drugs or Alcohol? If you recognize that you have a problem with using drugs or alcohol, you have already completed the most important step on your road to recovery. Attempting to do your job well while dealing with your problem is very difficult—but you’re not alone. Of those over age 18 abusing drugs or alcohol, it is estimated that more than 70 percent hold down full- or part-time jobs.

Payroll Stuffer

How Does Substance Abuse Affect the Workplace? Drug or alcohol abuse in the workplace impairs your senses and judgment, putting both your job and your coworkers at risk. It has a negative affect on relationships, health care costs, productivity, and workplace safety.

If you are struggling with a drug or alcohol problem, confidential help is available. Take the first step on the road to recovery by contacting your HR representative today.

Playing It Safe

Dealing With Depression. Everyone feels sad or down at one time or another. For most, this feeling passes within a few days or weeks. But when a loss of interest in normal activities and feelings of sadness persist for a longer period, it may indicate more serious conditions, including depression.

Lifestyle Lessons

Treating Lower Back Pain. Lower back pain is one of the most agonizing and common health conditions in the world, as well as a leading cause of disability. According to the American Chiropractic Association, 1 in 4 adults will experience lower back pain for at least one day during a three-month timespan.