by BHZ

Payroll legal obligations can put companies and managers at great risk in many ways. If you have anything to do with employee payroll and related matters, be aware of the following 11 mistakes and corresponding penalties.

Mistake #1: Failing to deposit withheld income taxes, Social Security and Medicare contributions, and employer matching amounts on time. The government wants its money by strict deadlines. Penalties accrue quickly if your business or organization misses deposit deadlines.

The penalty for not making deposits on time is:

• 1 to 5 days late, 2 percent of amounts due.
• 6 to 15 days late, 5 percent.
• 16 or more days, 10 percent.
• 15 percent if notice from the IRS is ignored, plus interest on the amount not deposited, plus 100 percent of the uncollected amounts if the failure to deposit is willful.

Note this grave, personal danger: These penalties can be levied personally against all responsible individuals in a business or organization. The corporate veil is no shield in these situations. Any individual with a responsibility for getting the money to the government on time faces possible exposure to penalties and fines.

Mistake #2: Under-withholding and failing to match required amounts.

The employer’s obligation is to withhold income tax, Social Security, and Medicare contributions from employees’ pay, as well as match the Social Security and Medicare contributions. Failure to do so subjects the employer to late deposit penalties of up to 15 percent of the under-withheld and under-deposited amounts. If the IRS deems the under-reporting or under-depositing willful, the penalties can be up to 100 percent of the uncollected amounts.

As with failing to make deposits in a timely manner, under-withholding and failing to match amounts creates a personal risk to individuals with a responsibility for getting the correct sums of money to the government on time.

Mistake #3: Failing to pay — or under-paying — state and federal unemployment taxes. The greatest portion of unemployment insurance (UI) taxes is levied by the state. And state-levied penalties vary. Since state UI funds are being exhausted in this period of high unemployment, states are aggressive in collection efforts.

Mistake #4: Failing to process wage garnishments correctly. Federal and state laws obligate employers to accurately withhold from employee pay, and remit, court-ordered garnishments, levies, and child support.

Violating these laws can result in penalties, depending on state laws. Also, federal law limits the amount of earnings that can be garnished, and protects employees from being terminated from their jobs because of a first-time garnishment. A violation can mean reinstatement of a discharged employee, payment of back wages, and restoration of improperly garnished amounts. Employers who willfully violate the discharge provisions of the law can be prosecuted criminally and fined up to $1,000, imprisoned for not more than one year – or both.

Mistake #5: Making unauthorized deductions from an employee’s pay. Employers can legally deduct from an employee’s pay only amounts authorized or required by law (such as tax withholding), by court order (such as garnishments), and amounts authorized by the employee (such as the employee’s share of health insurance).

What are unauthorized deductions? State laws vary and it can be tricky. In addition, federal wage and hour law requires payment of agreed upon and earned wages (with the allowed deductions listed above.)

Do you ever feel compelled to dock an employee’s pay if he or she breaks or damages company products or equipment? Check first with your attorney to see if this is permitted by your state law — even with the employee’s permission

Mistake #6: Treating some workers as independent contractors when they’re not. Misclassifying employees as independent contractors exposes employers to substantial legal costs and penalties.

In an effort to increase collections, the IRS and state agencies have ramped up investigations of misclassified employees. When a misclassification is discovered, the employer becomes obligated for unreported and undeposited withholding taxes, Social Security and Medicare contributions, penalties, and possible liability for employee benefits. When the IRS deems the misclassification to be negligent, the penalties can be up to 100 percent of the uncollected taxes.

And the payment of unreported taxes and contributions isn’t just for the past year. When the IRS and state agencies discover the misclassification of just one or two employees, this can trigger audits of the employer’s employment for prior years.

Mistake #7: Failing to include the value of awards, bonuses, and fringe benefits (when required) in employees’ taxable incomes. This action then results in the failure to withhold sufficient amounts from the total reportable income and not reporting the total reportable income to the IRS. The risk: The employer is subject to under-reporting penalties of up to 15 percent of the under-withheld and under-deposited taxes. If the failure is willful, the penalties can be up to 100 percent. And the employer could also be subject to information return penalties for incorrect W-2 forms (up to $50 penalty for each incorrect W-2).

Mistake #8: Using bogus or incorrect Social Security numbers for employees on their W-2 Forms and failing to accurately complete I-9 Forms. The risk: The employer can be subject to information return penalties for incorrect W-2 Forms, of up to $50 for each incorrect W-2. This mistake or failure by the employer also creates issues for the employees involved because they aren’t receiving proper earnings credits through the Social Security Administration.

Mistake #9: Failing to pay at least the higher of the federal or state minimum wage to non-exempt employees… as well as overtime in any seven-day workweek in which they work more than 40 hours. The risk: If this error is discovered, the employer is required to compensate the employee for back pay, plus fines and penalties. In addition to the fines and penalties imposed by the Department of Labor, the employer likely will be subject to federal and state wage and hour audits and owe additional amounts

Mistake #10: Not preparing and filing W-2 forms, and failing to send them to employees. The risk: The employer can be subject to information return penalties for incorrect W-2 forms, penalties of up to $100 for each incorrect or unreported W-2. For intentional failure, the penalties can go up to $200 for each incorrect statement.

Mistake #11: Failing to abide by state laws. It’s not just the federal wage and hour rules that employers must comply with. Employers need to be aware of, and comply with, the laws in the states where they have employees.

PEOs can help prevent these mistakes

To help avoid these costly blunders, more companies are turning to a professional employer organization (PEO), like Staff One.  A PEO serves as a human resources department for small and medium-sized businesses.  By entering into a co-employment relationship with a PEO, companies have access to experienced specialists who can help with many time-consuming activities in areas such as Human Resources Management, Payroll Management (including 940 and 941 filings), Employer Liability Management, Risk and Safety Management and Benefits Management.

The Department of Homeland Security (DHS) has issued a final regulation (75 FR 42575, July 22, 2010) concerning the use of electronic signatures and storage for Form I-9s.

Although the changes in the final rule are relatively minor, they provide clarification of some ambiguities contained in the initial rule. The primary changes implemented by this rule are as follows:

• employers must complete a Form I-9 by the third business (not calendar) day after an employee started work for pay;
• employers may use paper, electronic systems, or a combination of paper and electronic systems;
• employers may change electronic storage systems as long as the systems meet the performance requirements of the regulations;
• employers need not retain audit trails of each time a Form I-9 is electronically viewed, but only when the Form I-9 is created, completed, updated, modified, altered, or corrected; and
• employers may provide or transmit a confirmation of a Form I-9 transaction, but are not required to do so unless the employee requests a copy.

The Labor Department unveiled an online tool to help employers understand how to comply with H-1B visa program requirements.

The tool describes the H-1B program’s standards and provides detailed information about employers’ and workers’ rights and responsibilities, the department said. The tool outlines notification requirements, monetary issues, worksite issues, record keeping, worker protections, and enforcement issues. H-1B visas are granted to highly skilled, college-educated, temporary foreign workers for a maximum of six years.

The tool focuses on compliance with the requirements enforced by the Wage and Hour Division, the department said. “The Labor Department’s goal is to provide employers and the public with user-friendly information regarding both rights and responsibilities under the H-1B program,” Labor Secretary Hilda Solis said.

The H-1B compliance tool is available at http://www.dol.gov/elaws/h1b.htm.

For questions or to learn more: Alyshia Foster 214-461-1129 or alyshia.foster@staffone.com

The recent passage of the Patient Protection & Affordable Care Act (H.R. 3590) and the Health Care & Education Affordability Reconciliation Act of 2010 (H.R. 4872) will impact every business. How will it affect you? For your convenience, we have created a chronological summary for employers in general and also a bonus edition for small business owners.

Summary of the Legislation by Effective Date:
2010 | 2011 | 2013 |  2014 | 2018

Effective January 1, 2010
• Medicare Part D. The Act provides a $250 rebate check for all Part D enrollees who enter the “donut hole.” Currently the “donut hole” coverage gap falls between $2,830 and $6,440 in total drug spending by Part D enrollees.

• Adoption Tax Credit. The Act increases the adoption tax credit and adoption assistance exclusion by $1,000 (now set at $13,150), makes the credit refundable and extends the credit
through 2011.

Effective 90 Days After Enactment (i.e., June 21, 2010)
• Early Retirees. The Act establishes a temporary reinsurance program to provide reimbursement to employer health plans offering health coverage for early retirees (ages 55 to 64) and their families. The reinsurance program would reimburse employer health plans for 80 percent of the cost of benefits provided per enrollee in excess of $15,000 and below $90,000. The employer health plans are required to use the funds to lower costs assumed directly by participants and beneficiaries, and the program incentivizes plans to implement programs and procedures to better manage chronic conditions.

• Pre-Existing Conditions. The Act provides that group-health plans and health-insurance issuers offering group or individual health-insurance coverage may not impose any pre-existing condition exclusions with respect to such plans or coverage. Therefore, group-health plans that include such pre-existing condition exclusions will no longer be permitted.

Effective 90 Days After Enactment (i.e., June 21, 2010)
• Pre-Existing Conditions. The Act provides that group-health plans and health-insurance issuers offering group or individual health-insurance coverage may not impose any pre-existing condition exclusions with respect to such plans or coverage. Therefore, group-health plans that include such pre-existing condition exclusions will no longer be permitted.

Effective Six Months After Enactment (i.e., September 23, 2010)
• Additional Protections for Children. The Act: (1) bars health-insurance companies from imposing pre-existing condition exclusions on coverage for children and (2) requires any group-health plan or plan in the individual market that provides dependent coverage to continue to make that coverage available until the child turns 26 years of age, if the child does not have access to other health coverage (without regard to the child’s marital status).

• Lifetime Limits. The Act prohibits insurers from imposing lifetime limits on benefits. Additionally, beginning in 2014, the Act prohibits insurers from imposing annual limits on the amount of coverage an individual may receive.

• Preventive Health Services. The Act requires that all new group-health plans and plans in the individual market provide first-dollar coverage for preventive services (i.e., not subject to a deductible). Examples of preventive services include well-childcare visits and certain immunizations.

Effective January 1, 2011
• W-2 Reporting. The Act requires employers to disclose the value of the benefit provided by the employer for each employee’s health-insurance coverage on the employee’s annual Form W-2. This is a W-2 reporting obligation and will not result in additional taxable income to employees.

• Additional Tax for Health Savings Account (HSA) Withdrawals. The Act increases the additional tax for Health Savings Account withdrawals prior to age 65 that are not used for qualified medical expenses from 10 percent to 20 percent.

• Medicare Part D. The Act provides a 50-percent discount on all brand-name drugs and biologics in the “donut hole” and begins phasing in additional discounts in brand-name and generic drugs to completely fill the “donut hole” by 2020 for all Part D enrollees.

Effective January 1, 2013
• Healthcare Flexible Savings Accounts. The Act limits the amount of contributions to healthcare reimbursement flexible-spending accounts to $2,500 per year. No limit was previously imposed upon healthcare reimbursement flexible-spending accounts. This new limit will raise healthcare costs for employees with unreimbursed healthcare expenses in excess of $2,500 annually, to the extent the employee currently has a flexible-spending account that permits contributions in excess of $2,500—and would potentially create increased taxable income for employees.

• Limiting Deductibility of Executive Compensation for Insurance Providers. With respect to services performed after 2009, the Act limits the deductibility of executive compensation under section 162(m) of the Internal Revenue Code for insurance providers if at least 25 percent of the insurance provider’s gross premium income from health business is derived from health-insurance plans that meet the minimum creditable-coverage requirements. The deduction is limited to $500,000 per taxable year (as opposed to the typical $1,000,000 limitation) and applies to all officers, employees, directors and other workers or service providers performing services for, or on behalf of, a covered health-insurance provider.

• Medicare Part D. The Act eliminates the federal income-tax deduction for the 28-percent subsidy for employers who maintain prescription drug plans for their Part D eligible retirees.

• Itemized Deduction for Medical Expenses . The Act increases the income threshold for claiming the itemized deduction for medical expenses from 7.5 percent to 10 percent. Individuals over age 65 would be able to claim the itemized deduction for medical expenses at 7.5 percent of adjusted gross income through 2016.

Effective January 1, 2014
**Applies to Firms with 50 or more employees
• Promoting Employer Responsibility. The Act requires employers with 50 or more employees who do not offer health coverage to their employees to pay $2,000 annually for a “full-time employee” (an employee working 30 or more hours per week).

• The 50-employee threshold is based on the employer’s average number of employees on business days the preceding calendar year. Both full-time and part-time employees are considered in determining whether the employer has 50 or more employees; however, the number of part-time employees to be counted is determined by dividing the aggregate number of hours of service for those part-time employees for each month by 120. The $2,000 penalty then applies only to full-time employees.
• In order to encourage employers to expand beyond 50 employees, the first 30 employees are not included in calculating the applicable penalty amount.
• The penalty can also increase to $3,000 for a full-time employee receiving a federal tax credit in the exchange where the employer offers health coverage, but that coverage would be deemed “unaffordable” because the employee has to pay more than 9.8 percent of his or her income, or the employer contributes less than 60 percent of the actuarial value of the plan. Therefore, while employers are not required to offer health coverage under the Act, significant penalties may be imposed on those employers that do not offer it or that only offer health coverage deemed “unaffordable.”
• In addition, employers may still impose a waiting period for coverage without being subject to a penalty, but this waiting period may not exceed 90 calendar days.

**Note: firms with more than 200 employees must provide coverage, of which an employee can opt out.

Effective January 1, 2014 Continued
• Wellness Programs. The Act provides that employers can offer increased incentives to employees for participation in a wellness program or for meeting certain health-status targets. The Act permits rewards or penalties, such as premium discounts of up to 30 percent of the cost of coverage. Existing wellness regulations are limited to wellness incentives of up to 20 percent of the total premium, provided that certain conditions are met.

• Waiting Period. In addition, employers may still impose a waiting period for coverage without being subject to a penalty, but this waiting period may not exceed 90 calendar days.

• Exchanges. The Act provides for the creation of health-insurance exchanges at the state level in 2014, where individuals and small employers would be able to buy health coverage in a manner similar to that of larger employers. Initially, the state exchanges would be open to individuals and small employers with 100 or fewer employees, unless the state opts to limit this to organizations with 50 or fewer employees. Beginning in 2017, states would have the option to expand the exchange to larger employers.

Effective January 1, 2018
• High-Cost Plan Excise Tax. The Act imposes a nondeductible excise tax of 40 percent on insurance companies and plan administrators (including self-insured plans) for any health-insurance plan where the combined annual employer/employee premiums exceed the threshold of $10,200 for self-only coverage and $27,500 for family coverage. The tax would apply to the amount of the premium in excess of the threshold. An additional threshold amount of $1,650 for singles and $3,450 for families would be available for retired individuals over the age of 55 and for plans that cover employees engaged in high-risk professions (e.g., law-enforcement professionals, EMTs, construction and mining).

For questions or to learn more: Alyshia Foster 214-461-1129 or alyshia.foster@staffone.com

The HIRE Act mmediately enhances employers’ cash flow by allowing employers to retain the employer portion of Social Security Tax. Read on as to be sure that you don’ t miss this opportunity as an employer to receive increased tax credits and payroll tax exemption.

With the recent passage of the Patient Protection & Affordable Care Act (H.R. 3590) and the Health Care & Education Affordability Reconciliation Act of 2010 (H.R. 4872), some employers may already be planning to limit growth as to not be affected by certain mandates of the new legislation. To comfort the fretting business owner, some alleviation has been signed into legislation in the form of tax credits.

On March 19, President Obama signed into legislation the Hiring Incentives to Restore Employment (HIRE) Act that creates a tax credit for the hiring of new employees. The law includes a payroll tax exemption and increased tax credits for employers that meet certain eligibility requirements. Under this new law, an employer that hires an employee after February 3, 2010 and before January 1, 2011, can receive a tax credit equal to the employer’s portion of the Social Security Tax. All employers, excluding government employers, are eligible to receive the credit. Public Institutions of higher education are the only government institutions that qualify for the tax credit.

To qualify for the 6.2% Employer Social Security Tax exemption under this legislation, an employer must hire an employee who has not been working for 40 hours per week for the past 60 days and whose 2010 earned wages after March 18, 2010 and before January 1, 2011 do not exceed $106,800. The exemption has no limit as to the total amount of benefits that can be claimed by an employer. An employer can save up to $6,622 per qualifying working no matter how many employees are hired.

In consideration of tax credits, employers will receive the lesser of $1000 or 6.2% of wages paid to the qualifying work. In order to qualify, an employee must have been hired after the initial start date (February 3) and remained on payroll for 52 consecutive weeks. Wages for the last 26 weeks of the period may not drop below 80% of the wages paid the first 26 weeks. Each eligible employee is expected to verify status per signed affidavit, under penalties of perjury, he or she has “not been employed for more than 40 hours during the 60-day period ending on the date such individual begins such employment.”

The legislation also encourages employers to hire sooner rather than later as the tax benefit will be greater. Neither the 6.2% Employer Social Security Tax exemption nor the retention tax credit is permitted if a person is hired to replace another employee, “unless such other employee is separated from employment voluntarily of for cause.” Additional benefits in the new legislation include: an allowance for small businesses to expense up to $250,000 of their taxable income through the end of 2010, an expansion for the eligibility of “Build America Bonds,” and it extends surface transportation policy through December, providing $19.5 billion for road construction and other infrastructure projects under the Highway Trust Fund.

President Obama on March 18 signed the Hiring Incentives to Restore Employment Act (H.R. 2847), which includes a tax credit for certain new hires retained by employers and a Social Security payroll tax exemption for such new hires. Under the HIRE Act, employers generally can take a tax credit of up to $1,000 for each new hire who begins employment between Feb. 4 and Dec. 31, 2010, and attests to being unemployed for at least 60 days prior to such employment (or having worked less than a total of 40 hours during the 60-day period). These employees must be employed for at least 52 consecutive weeks and earn wages during the last 26 weeks of such period equal to at least 80 percent of wages paid during the first 26 weeks. Employers cannot replace employees with these new hires unless the employees have left employment voluntarily or for cause. In addition, employers can exempt their share of Social Security payroll taxes in 2010 for these new hires.

More information can be found at http://thomas.loc.gov/cgi-bin/bdquery/z?d111:H.R.2847:

On March 2, 2010, the U.S. Senate passed H.R. 4691, the Temporary Extension Act of 2010 by a vote of 78-19.  This Senate action follows House passage of H.R. 4691 on February 25, 2010.  The President immediately signed this bill into law on March 2, 2010.

The Temporary Extension Act:

1. Extends the COBRA subsidy program that was enacted under the American Recovery and Reinvestment Act and
2. Extends unemployment benefits through April 5, 2010.

COBRA

The law’s COBRA provisions:

• Extend the eligibility period for the 15-month 65 percent premium subsidy to those involuntarily terminated from March 1 through March 31, 2010.

• Allow employees to receive the subsidy if they first lost group coverage due to a reduction in hours and then were terminated after enactment of the bill.

Unemployment Insurance

The law’s unemployment insurance benefit provisions:

• Extend the period during which individuals may file applications for Federal Emergency Unemployment Compensation (EUC) from the current end date of February 28, 2010 to April 5, 2010 and the period during which individuals may claim and be paid EUC is extended from July 31, 2010 to September 4, 2010.
• Extend the period during which individuals may qualify for the Federal Additional Compensation (FAC), the extra $25 weekly benefit amount on state and federal unemployment compensation, from the current end date of February 28, 2010 to April 5, 2010 with weekly payment provided during the phase out period for weeks ending October 5, 2010 instead of August 31, 2010.
• Extend the period during which 100% federal reimbursement for weeks of regular federal extended benefit payments to April 5, 2010, with the state option to continue the extended period from July 31, 2010 to September 4, 2010.

Additional Extension

These “short-term” extensions of the COBRA subsidy and unemployment benefits are intended to give Congress more time to consider legislation to extend these programs through 2010.  Under H.R. 4213, a bill the Senate is currently debating, both the COBRA subsidy program and unemployment benefits would be extended through December 31, 2010.

• 70% of Employers are non-compliant with wage and hour laws, according to the Department of Labor (DOL).
• 2 out of 3 workplace-related lawsuits that go to trial are won by the employee.
• $10.3 Million: Civil penalties assessed against employers by the Wage &  Hour Division of the DOL in 2007.
• $220.6 Million:  Damages paid by employers for wage and hour non compliance in 2007.
• 11.2 Million:  The jury award against Mary Kay Cosmetics for classifying beauty “consultants” as independent contractors.
• $650,000:  The average jury award to plaintiffs for damages in workplace-related lawsuits.
• 88,846:  Number of violations recorded by OSHA inspectors in 2007, of which 67,176 were serious.
• $1 million: Potential per-occurrence fine for failure to safeguard personal/non-public information against identity theft under the Gramm/Leach/Bliley safeguard Bill.

The federal Equal Employment Opportunity Commission released on Oct. 22 a revised “Equal Employment Opportunity is the Law” poster (EEOC-P/E-1 (Revised 11/09)) that incorporates the federal Americans with Disabilities Act Amendments Act of 2008, the federal Genetic Information Nondiscrimination Act of 2008 (effective Nov. 21, 2009), and updates from the federal Department of Labor. Employers that are covered by federal nondiscrimination laws, such as Title VII of the Civil Rights Act of 1964, must display this poster in conspicuous places on their premises where notices to employees and applicants typically are posted. EEOC advises employers to post the new November 2009 version of the poster or display a supplement next to a prior version of the poster issued by EEOC (September 2002) or the federal Office of Federal Contract Compliance Programs (August 2008).

By Kaiser Family Foundation

Achieving comprehensive health reform has emerged as a leading priority of the President and Congress. President Obama has outlined eight principles for health reform, seeking to address not only the 45 million people who lack health insurance, but also rising health care costs and lack of quality. In Congress, a number of comprehensive reform proposals have been announced as the debate proceeds over how to overhaul the health care system.

This interactive side-by-side compares the leading comprehensive reform proposals across a number of key characteristics and plan components. Included in this side-by-side are proposals for moving toward universal coverage that have been put forward by the President and Members of Congress. In an effort to capture the most important proposals, we have included those that have been formally introduced as legislation as well as those that have been offered as draft proposals or as policy options. It will be regularly updated to reflect changes in the proposals and to incorporate major new proposals as they are announced. This side-by-side offers a summary of the major components of these proposals; detailed descriptions of provisions relating to the Medicare and Medicaid programs can be found online.

Click here to access the comparison