The Aging Workforce: What to Expect and the State of Age Discrimination

How Extensively Has Age Discrimination Changed in the Past 50 Years? Most employers are aware of the ADEA (Age Discrimination in Employment Act) passed in 1967. The law has been in existence for decades. What many employers may not be aware of is the fact that age discrimination continues to be an issue, and in some cases a growing issue. How likely are you to be sued for age discrimination? Are the statistics on your side or against you? Consider the following facts reported this year by the EEOC in a statement about the state of age discrimination and older U.S. workers. Age Discrimination Statistics Today More than 60 percent of workers surveyed in 2017 who were age 45 and older indicated they either noticed or experienced age discrimination in the workplace. Of the individuals in this group, 90 percent stated age discrimination was common. African Americans (77 percent) reported higher rates of age discrimination, followed by Hispanics (61 percent) and Whites (59 percent). More women than men said that older workers face age discrimination. Older workers in the technology sector indicated that 70 percent of those on IT staffs had observed or experienced age discrimination. More than 40 percent of older workers in the technology fields feared losing their jobs due to age. In a Forbes magazine article, the author commented about the EEOC’s report entitled “State of Age Discrimination Statement 50 Years After the ADEA.” The article said that since the 2009 Supreme Court ruling on the Case Gross vs. FB Financial Services, age discrimination has been much more difficult to prove in court. Types of reforms...

What Employers Should Know About Retaliation Claims

Retaliation Claims May Include Emotional Distress Damages A precedent has been set in relation to retaliation claims brought against employers. Two courts of appeals, the Sixth and Seventh Circuit Court of Appeals had both ruled that employees have the right to recover for emotional distress damages in retaliation claims brought under the Fair Labor Standards Act (FSLA). The National Law Review reported that a third court, the Fifth Circuit Court of Appeals also delivered the same ruling regarding damages for emotional distress. What Are the Case Details in This Third Ruling? A maintenance man, Santiago Pineda, while working for an apartment complex owned by JTCH Apartments, LLC received discounted rent as part of his compensation for doing apartment maintenance. After Pineda sought unpaid overtime, he and his wife received notice to vacate the apartments with the reason being given that they had failed to pay rent. JTCH at that point was claiming Pineda owed rent for the course of his employment. Pineda sued for damages based on the eviction and demand for back rent. He also entered an appeal regarding the district court’s failure to instruct the jury about his ability to claim damages for emotional distress related to his retaliation claim. The Fifth Court of Appeals ruled that the court was in error when declining to instruct the jury regarding Pineda’s right to damages for emotional distress, and it reversed and remanded the case for trial so the jury could decide on this potential damage. How Could the Ruling About Retaliation Claims Impact Employers? Employers should be aware that employees who also file for emotional distress damages could...

Guidelines for Classifying Workers as Independent Contractors or Employees

Why is worker classification important? If a worker is an employee, you as the employer must withhold income taxes and pay Social Security, Medicare taxes and unemployment tax on the wages paid to the worker. Workers who are independent contractors are responsible for paying their own Social Security and Medicare taxes, which is called self-employment tax. The employer pays half of the employee’s self-employment tax and the employee pays the other half. Independent contractors pay the full amount of self-employment tax themselves. What Factors Determine Whether a Worker is an Independent Contractor or Employee? According to the IRS website, the three main factors that help an employer decide whether a worker is an employee or independent contractor are: Behavioral control Financial control Relationship How Does Behavioral Control Factor into Work Status? The employer has more control over an employee than an independent contractor. Control includes factors such as instructing the worker when and where to do work, specifying what tools to use or where to buy tools. Employees receive detailed instruction and employers may have evaluation systems in place to measure the end result of their work. Also employees often receive job training that specifies procedures and methods to be used. This is true whether the training is periodic or ongoing. How Does Financial Control Affect Work Status? Examples of financial control that would apply to employees are substantial investment in the worker’s equipment, reimbursed expenses, no opportunity for profit or loss, and method of payment, such as a regular wage for hourly, weekly or some other time period payment. Even when the employer supplements pay by commissions, workers...

Misclassifying Workers as Independent Contractors

How Would Your Small Business Fare with the IRS for Worker Status? Did you know that misclassifying workers is one of the top problems that small business owners face? Many small businesses hire independent contractors as part of running their businesses and delivering services or products. It is vital for employers to ensure that they classify workers correctly. What Can Happen as Result of Misclassifying Workers as Independent Contractors? The IRS website explains that misclassified workers can file a Social Security Tax Form 8919. Form 8919 is a request for uncollected Social Security and Medicare taxes due on their compensation. In other words, the employer could owe a considerable amount of compensation to the worker because the worker paid the Social Security and Medicare taxes instead of the employer, due to the fact the worker was misclassified as an independent contractor. What Recourse Do You Have If You Believe the Worker Has Not Been Misclassified? The IRS recognizes the fact that you may have had a reasonable basis for classifying a worker as an independent contractor and not as an employee. Therefore, relief provisions are granted in such cases. However, you must file all the necessary federal information returns to establish your basis for relief. (See section 530 Employment Tax Relief Requirements). What is the Voluntary Classification Settlement Program? The Voluntary Classification Settlement Program (VCSP) offers employers the option of reclassifying workers as employees for future tax periods. It also provides partial relief from federal employment taxes when the employers agree to classify their workers or a class or group of workers as employees. Employers must meet certain eligibility...

Digital Devices, Social Media and Employers: Bring Your Own Device

Where should you draw the lines as employers? A trend exists where employers increasingly allow employees to use their own mobile devices, including laptops, tablets and smart phones, in the workplace to do their jobs. They can use their own devices to access applications and company information, post on social media accounts and send emails or texts related to business. In fact, an acronym has emerged to describe this practice: BYOD (Bring Your Own Device). Although technology has advanced quickly, federal and state laws are still in the process of catching up with technology’s advances. What legal issues can exist with BYOD? According to an article published by the American Bar Association, employee privacy is one the main issues associated with BYOD. Because employees have personal information along with company information on their mobile devices, the policies put in place by an employer are vital for a company’s legal protection. This fact was established by a case that the Georgia Court of Appeals heard: Sitton v. Print Direction, Inc. In fact, the employer’s policies were pivotal in determining the court’s ruling. The plaintiff in the lawsuit, a salesperson working for a commercial printing business, used his personal laptop for work, but the also used his laptop to broker some print jobs for his wife’s company, which was also a printer, one of his company’s competitors. Upon hearing about his double use of the computer, the salesman’s CEO went into the employee’s computer and printed emails confirming the fact. The company fired the employee and the employee sued based on the Georgia Computer Systems Protection Act, alleging invasion of privacy....