Krystmas School of Musical Arts Spring Awards Recital

June 6, 2012 in Music Instruction, News

Marianne Krystmas will be hosting the Krystmas School of Musical Arts
Spring Awards Recital on Saturday, June 9th. Bring the family and enjoy the music of Marianne’s wonderful students. The performance will take place at Studio West Recording Studio. 11021 Via Frontera,Suite A. Rancho Bernardo 92128 from 2:30 – 4:30.

Come and enjoy the show!

Do You Comply with the FLSA? Most Employers Don’t

June 4, 2012 in News

February 9, 2011 | Written by Jennifer Carsen, Esq.

Statistics from the U.S. Department of Labor estimate that almost 70% of employers aren’t in compliance with the Fair Labor Standards Act (FLSA)—a percentage that almost certainly increases when similar violations under state law are taken into account.

The federal Department of Labor is tackling this problem in a big way, dedicating a staggering $25 million to increased enforcement. And they expect to generate—from your company and others—$7 billion of additional revenue over the next 10 years.

To avoid getting ensnared in this web of increased enforcement, the solution is simple, say attorneys Veronica Gray & E. George Joseph—audit, audit, audit.

Gray and Joseph are partners at the Orange County office of law firm Nossaman LLP.

What To Audit?

It’s back to basics. Although DOL enforces some 180 laws, the main ones to look at are:

  • Fair Labor Standards Act
  • Family and Medical Leave Act      (FMLA)
  • Davis-Bacon Act
  • Walsh Healey Public Contracts      Act
  • Copeland      “Anti-kickback” Act
  • Contract Work Hours and Safety      Standards Act
  • McNamara-O’Hara Service      Contract Act
  • The Federal Wage Garnishment      Law: Title III of the Consumer Credit Protection Act
  • Immigration and Nationality Act
  • Employee Polygraph Protection      Act
  • The Migrant and Seasonal      Agricultural Worker Protection Act

What You Need To Do To Be Ready

Gray and Joseph suggest that you look closely at the following areas:

  • Employee Classifications
    • Exempt/Non-Exempt classifications
    • Independent Contractor       classifications
  • Improper Deductions/Docking
  • Recordkeeping
  • Posters
  • Paying for All “Work”
    • Bonuses Calculated in Overtime
    • Booting-Up Computer
    • Donning & Doffing
    • Emails/Phone Calls
    • Overtime
    • Training Time
    • Travel Time
    • Waiting Time/On-Call
    • Working Off the Clock

Misclassified Employees Can Mean Big Payouts

February 10, 2011 | Written by Jennifer Carsen, Esq.

In yesterday’s CED, attorneys Veronica Gray & E. George Joseph warned of the coming crackdown on misclassification of independent contractors. Today, classification factors considered by government agencies and the courts, as well as an introduction to a can’t-miss webinar next week.

Misclassification is high on the DOL and IRS agendas, so it’s a good place to look for problems, says Gray. Unfortunately, there is no single test for classification that fits all circumstances. Employers need to be aware of three tests plus court questions to make a determination, Gray says.

Gray and Joseph are both partners at the Orange County office of law firm Nossaman LLP.

1. The FLSA Economic Realities Test

  • The degree of control exercised      by the alleged employer
  • The extent of the relative      investments of the putative employee and employer
  • The degree to which the alleged      employee’s opportunity for profit or loss is determined by the employer
  • The skill and initiative      required in performing the job
  • The permanency of the      relationship
  • The degree to which the service      is an integral part of the employer’s business

2. The EEOC 16-Factor Test (Nonexhaustive)

Indicators of an employment relationship:

  • The employer has the right to      control when, where, and how the worker performs the job
  • The work does not require a      high level of skill or expertise
  • The employer furnishes the      tools, materials, and equipment
  • The work is performed on the      employer’s premises
  • There is a continuing      relationship between the worker and the employer
  • The employer has the right to      assign additional projects to the worker
  • The employer sets the hours of      work and the duration of the job
  • The worker is paid by the hour,      week, or month rather than the agreed cost of performing a particular job
  • The worker does not hire and      pay assistants
  • The work performed by the worker      is part of the regular business of the employer
  • The employer is in business
  • The worker is not engaged in      his/her own distinct occupation or business
  • The employer provides the      worker with benefits such as insurance, leave, or workers’ compensation
  • The worker is considered an      employee of the employer for tax purposes (i.e., the employer withholds      federal, state, and Social Security taxes)
  • The employer can discharge the      worker
  • The worker and the employer      believe that they are creating an employer-employee relationship

3. The IRS 11-Factor Test

Behavioral Control

  • Instructions the business gives      the worker.
  • Training the business gives the      worker.

Financial Control

  • The extent to which the worker      has unreimbursed business expenses.
  • The extent of the worker’s investment.
  • The extent to which the worker      makes services available to the relevant market.
  • How the business pays the      worker.
  • The extent to which the worker      can realize a profit or loss.

Type of Relationship

  • Written contracts describing      the relationship the parties intended to create.
  • Whether the business provides      the worker with employee-type benefits.
  • The permanency of the      relationship.
  • The extent to which services      performed by the worker are a key aspect of the regular business of the      company

4. Questions Courts Are Likely To Ask

Courts may ask the following questions to determine work relationship in addition to both an economic and an agency test, Gray says.

  • What degree of control does the      employer have over work, and who exercises that control?
  • What is each party’s level of      loss in the relationship?
  • Who has paid for materials,      supplies, and/or equipment?
  • What type of skill is required      for work?
  • Is there a degree of      permanence?
  • Is the worker an integral part      of the business?

Overtime Compliance in California: How to Master the Art of Calculating What’s Really Owed

Wage and hour class actions under state law—or “collective actions” under federal law— have emerged as one of the most significant employment law trends of the past 10 years. Statistics from the U.S. Department of Labor estimate that almost 70% of employers aren’t in compliance with the Fair Labor Standards Act (FLSA)—a percentage that almost certainly increases when similar violations under state law are taken into account.

Non-exempt workers are entitled to overtime. That much we all know. But just how much overtime premium pay they’re entitled to in a given overtime workweek can get tricky when you factor in shift differentials, bonuses, incentive pay, piece-rates, commissions, and many other kinds of compensation, as well as the fact that some non-exempt workers may be paid on a salary basis instead of hourly.

Failing to pay workers what they’re owed can have dire consequences for your organization since employees are usually entitled to an additional amount as liquidated damages on top of the unpaid wages—which could mean you’re on the hook for payouts that are far beyond the amount of any unpaid wages.

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