Categories
Union Matters

Historic Supreme Court Decision Today Goes Against AFSCME

Historic Supreme Court Decision Today Goes Against AFSCME

By Richard H. Wessels of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Union Matters on Wednesday, June 27, 2018.

The US Supreme Court issued its decision in Janus v AFSCME minutes ago ruling against the union in the public sector union fee case. This is a devastating body blow to organized labor. Click below to read the historic decision.

https://www.supremecourt.gov/opinions/17pdf/16-1466_2b3j.pdf

Questions? Contact us.

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Categories
Independent Contractor

How Should A Company Respond When It Suddenly Receives an IRS Form SS-8 in the Mail!??

How Should A Company Respond When It Suddenly Receives an IRS Form SS-8 in the Mail!??

By Nancy E. Joerg of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Independent Contractor on Tuesday, June 26, 2018.

The Answers to the Top Ten Employer Questions

When a company uses independent contractors, it is not unusual for the Company to suddenly get a letter from the IRS that a current or former worker has submitted an IRS Form SS-8 (Determination of Worker Status for Purposes of Federal Employment Taxes and Income Tax Withholding).

IRS FORM SS-8 IS FILED: The IRS Form SS-8 inquiry can be triggered by either a worker/independent contractor or by the Company for whom the worker performs services. Either party can start the inquiry.

If the Company submits the Form SS-8 to the IRS, it is usually because the Company wants official confirmation by the IRS that independent contractors are being properly classified as independent contractors by the Company for purposes of Federal income tax withholding and employment taxes.

However, the IRS Form SS-8 is most often submitted to the IRS by a disgruntled former independent contractor (who is now loudly claiming that he/she was misclassified by the Company and therefore should not be asked to now pay self-employment tax).

IRS ACKNOWLEDGES RECEIPT AND SENDS BLANK SS-8 FORMS TO PARTIES FOR COMPLETION: The IRS attempts to get very detailed information from all parties involved by sending those parties blank Forms SS-8 for completion. The Company is always informed of the disgruntled independent contractor’s identity. It is not held secret.

The IRS will then review the responses on the Form SS-8 from both the worker and the Company. Next, the IRS applies the law regarding independent contractor status and renders a very long and detailed written decision called a Determination (and that written Determination will be sent to both the Company and the worker).

This is of course a very nerve wracking, anxiety producing experience for the Company under scrutiny by the IRS SS-8 Unit. The Company generally has many questions it wants to think over before filling out and submitting the four pages of the IRS Form SS-8 to the IRS.

The following are the ten most frequently asked client questions about this IRS SS-8 issue:

Question 1: If the Company had a written independent contractor agreement signed and dated by the independent contractor, is that enough to establish an independent contractor relationship in the eyes of the IRS?

Answer: No

Question 2: Does the IRS Form SS-8 Determination letter constitute an audit for purposes of a Federal tax return?

Answer: No

Question 3: Are there any appeal rights available in connection with an IRS Form SS-8 Determination letter?

Answer: No. Surprisingly, there is no procedure of any kind to appeal the IRS Form SS-8 Determination letter reclassifying workers to employee status.

Question 4: Does an IRS Form SS-8 Determination letter affect the Company’s IRS Section 530 safe haven protections?

Answer: No

Question 5: Does the IRS ask for a dollar assessment from companies who are found to have misclassified their independent contractors under a Determination letter from the IRS SS-8 Unit?

Answer: No

Question 6: If either party (the Company or the worker) fails to submit a filled out IRS Form SS-8, does the IRS SS-8 Unit still go ahead and make a determination based on only one of the parties’ filled out SS-8 forms?

Answer: Yes

Question 7: Does the IRS issue a Determination letter on worker status for proposed classification situations or hypothetical situations?

Answer: No. The IRS only issues determination letters based on actual worker/company relationships. The IRS SS-8 Unit evaluates real facts as described by the parties.

Question 8: What is the purpose of the IRS Form SS-8?

Answer: By having the parties answer many specific factual questions (there are four pages of questions), the IRS SS-8 Unit is hoping to properly evaluate whether the working relationship is employer/employee or Company/independent contractor.

Question 9: Should a Company seek legal advice before filling out and submitting the IRS Form SS-8, even when the Company is secure in its knowledge that the independent contractor relationship is proper?

Answer: Yes, it is always wise to work with an attorney who is very familiar with the IRS perspective on independent contractor status. The questions on the IRS Form SS-8 are phrased in a way which can be very confusing. Each word counts.

Question 10: What do I do if my Company receives a Determination letter from the IRS SS-8 Unit finding that the workers at issue are misclassified independent contractors and are really employees in the eyes of the IRS SS-8 Unit?

Answer: You have several options ranging from reclassifying the worker(s) to employee status; restructuring the independent contractor relationship; or ignoring the Determination if it is based on erroneous facts.

You also have the option of relying on IRS Section 530 safe haven status if an experienced attorney tells you that you likely have that legal protection. Do not make this important legal decision without the advice of an experienced attorney in this area.

Questions?: For further information on this complex issue and various strategy steps to take in the face of such an IRS request or any independent contractor questions or concerns, please contact Attorney Nancy Joerg at Wessels Sherman’s St. Charles, Illinois office: 630-377-1554 or email her at najoerg@wesselssherman.com.

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Categories
Illinois Department of Employment Security (IDES)

Help! I Just Found Out I Am Going To Be Audited By The IDES!

Help! I Just Found Out I Am Going To Be Audited By The IDES!

By Nancy E. Joerg of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Illinois Department of Employment Security (IDES) on Wednesday, June 20, 2018.

What Should Our Company Do?!

As an attorney who has been helping Illinois companies with these kinds of sudden IDES audit notices for the last 30 years, I am well aware of the panic that often sets in when an Illinois company opens a letter from the Illinois Department of Employment Security (IDES), and it is a NOTICE OF IDES AUDIT.

The Notice of Audit letter is often the very first notification that the Company has that it is going to be audited by the IDES (the Illinois state agency that handles unemployment insurance claims, employer taxes called contributions, and unemployment insurance hearings).

The Notice of Audit letter introduces the audit by saying there is no suggestion of fault against the company to be audited. However, most Illinois companies are understandably upset and anxious when they find out they have been selected for audit.

FIRST PAGE OF NOTICE OF AUDIT LETTER: The first page of the Notice of Audit letter specifies the name of the auditor and auditor supervisor assigned as well as their full contact information.

There is a specific audit year indicated (never the current year, but routinely one or two years back). The IDES doesn’t audit the current year because it is not a complete payroll year and also because there are no 1099s issued yet for the current year (since 1099s are issued in the year following the services rendered).

The first page of the Notice of Audit letter also contains a day and time that the auditor wishes to begin the audit. Clients frequently ask me if they can request a continuance. And my response is that it is routine to ask for a continuance so that the Company can better prepare for the audit. I have never known an auditor to refuse just one request for a continuance to a later date to begin the audit.

SECOND PAGE OF NOTICE OF AUDIT LETTER: The second page is a Records Request which is a laundry list of the kinds of records that the auditor wishes to examine. At the bottom of that page, there is a statement that if the Illinois company doesn’t maintain certain records, you are not expected to create those records. In other words, whatever payroll and related records your company has for the specified year is what the auditor wants to see.

Very few companies have all the many types of records detailed on page 2 of the Notice of Audit letter. The IDES auditor does not expect the Company to have all the listed records. Further, the IDES auditor doesn’t expect the Company to be ready to hand over all the records on Day 1 of the audit. It is generally very acceptable for the Company to give the auditor some of the requested records on Day 1 of the audit and then follow up by sending other requested records electronically to the auditor.

AUDIT YEAR: An audit by the IDES always starts with one specific year. The Notice of Audit letter specifies which year the auditor will begin with.

The IDES is permitted by law to audit a company for up to four years but this is highly unusual. It is much more usual to see an IDES auditor audit one year, sometimes two years, and sometimes three years depending on the amount of the proposed assessment owed to the IDES. Although this standard changes from year to year, the IDES will generally not audit the company for a second year if the contributions owed as a result of the audit are less than $5,000. But this is not a hard and fast rule.

The IDES auditor will not mention whether he or she will extend the audit until the auditor has totally finished with the first year of the audit. Then the IDES auditor may announce that the auditor is extending the audit by asking the Company under audit for its 1099 forms for the prior year. In almost all cases, the IDES auditor will only go back in time (rather than coming forward towards the present year when auditing another year).

Often it is not the auditor, but rather the auditor’s supervisor, who makes the very important decision about whether the audit will be extended to a second year.

PREPARING FOR AN IDES AUDIT: You should be thoroughly prepared in the face of an IDES audit. The best way to prepare for an audit is to read over the records request on the second page of the Notice of Audit letter and see which records you can pull together to give to the auditor on the first day of the audit. If your company used independent contractors in the year being audited, start to make lists of the type of services the independent contractor provided and think of how you can prove that they themselves had their own independent businesses and were not your employees.

REFERRAL FEES: If payments to an individual were “mere referral fees” then explain that to the auditor. Mere referral fees are not considered services for which employee wages should have been paid.

CERTAIN WORKERS ARE EXEMPT: Also, certain kinds of workers are actually exempt from being employees (and therefore it was not necessary for the Company to classify the worker as an employee). An example would be “direct sellers” under certain facts and circumstances. See Sections 207 and 208 of the Illinois Unemployment Insurance Act.

UNEMPLOYMENT INSURANCE RATE: The IDES auditor will also check to see that you used the correct unemployment insurance rate when you sent in your contributions to the IDES on your declared employees. Sometimes a company actually overpaid and, as a result of the audit, will be credited for the overpayments that the Company made in error.

WORKER RELATIONSHIP QUESTIONNAIRE: The auditor will sometimes ask the Company to fill out the IDES Worker Relationship Questionnaire. There is a special Worker Relationship Questionnaire for truck drivers who are owner-operators. Always seek experienced legal counsel in filling out these complex Questionnaires.

WHAT TRIGGERS AN AUDIT: Many IDES audits are truly random. In other words, the Company was randomly selected. Other IDES audits are triggered because an independent contractor filed for unemployment insurance benefits and, when the IDES became aware of this discrepancy, it listed the Company as an audit lead.

For assistance with IDES audits, hearings, and independent contractor agreements (or for consultations on limiting your liability in the use of independent contractors), contact Attorney Nancy E. Joerg, who enjoys a nationwide reputation in working with companies who use Independent Contractors of all types. Nancy Joerg can be reached at Wessels Sherman’s St. Charles, Illinois office: (630) 377-1554 or email her at najoerg@wesselssherman.com.

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Categories
Family and Medical Leave Act (FMLA)

FMLA and Substance Abuse

FMLA and Substance Abuse

By Walter J. Liszka of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Family and Medical Leave Act (FMLA) on Friday, June 15, 2018.

Substance abuse (whether it be related to alcohol or drug use) is a potentially serious workplace issue that can quickly become extremely complicated. It is very important for all Employers to keep in mind that substance abuse can, in and of itself, be considered as a serious health condition and as such, may come under coverage of the Family Medical Leave Act and allow the Employee to be qualified for FMLA Leave.

Substance abuse issues and FMLA Leave must be viewed in the context that FMLA Leave for substance abuse will only occur when the individual is receiving treatment for substance abuse as provided and administered by a healthcare provider. Since FMLA Approved Leave is for treatment only, an Employer need not tolerate or excuse absences not covered by FMLA Leave because of an Employee’s use of a substance. While an Employer may not take action against an Employee because they are exercising their FMLA rights, an Employer has the right to take employment action for substance abuse assuming that an Employer has an established policy that is applied in a nondiscriminatory manner and has been communicated to all Employees that establishes that substance abuse (the use of the alcohol and/or drugs that affect the workplace) may be grounds for termination.

While an Employee may be perfectly entitled to the use of FMLA for substance abuse treatment, once that Employee has returned to work and establishes a violation of policy for use of substances at work or the failure to report to work, even though the Employee may have “fallen off the wagon” and relapsed into his/her substance abuse, the Employer has every right, assuming the existence of a communicated aubstance abuse policy, to invoke that policy and terminate the individual for his/her actions. The Employer is not terminating the individual because of their treatment and/or use of FMLA to participate in a treatment program, the Employer is terminating the individual for their actions effecting the Employer due to their actual substance abuse.

While Employers must try to balance the goals of a safe and healthy work environment with the understanding that substance abuse can be a serious health condition, Employers should keep in mind that once the FMLA substance abuse treatment leave ends, the involved Employee would still be subject to legally enforceable policies of the Employer with regard to workplace violations for their substance abuse.

Questions? Contact Attorney Walter Liszka in our Chicago office at (312) 629-9300 or by email at waliszka@wesselssherman.com

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Categories
Employee Handbooks

NLRB General Counsel Issues Much Needed Guidance on Lawful Employee Handbook Provisions

NLRB General Counsel Issues Much Needed Guidance on Lawful Employee Handbook Provisions

By James B. Sherman of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Employee Handbooks on Wednesday, June 27, 2018.

On June 6th newly appointed General Counsel to the National Labor Relations Board, Peter B. Robb, issued comprehensive new guidance on employee handbook provisions. The guidelines direct the Board’s Regional Directors throughout the country to reverse course from years of decisions issued by the Board majority appointed by then President Obama. Under the Obama Board numerous workplace rules commonly found in employee handbooks, were declared unlawful. Specifically, a long line of NLRB decisions considered many standard provisions interfered with or restrained employees in exercising their right to engage in “concerted activities” protected by Section 7 of the National Labor Relations Act. The rationale used to justify such an extraordinary expansion of a labor law that has existed since 1947, was based on a hypothetical question: “could” employees interpret a given handbook provision to tamp down their right to strike, or to join together in protest of wages or other terms and conditions of employment? All too often the Board answered this hypothetical question in the affirmative, declaring basic workplace rules on civility, confidentiality, misconduct, etc. violated employee rights. These decisions – and the vague, hypothetical theory on which they were based – left employers in the dark as to what they could include in their employee handbooks without breaking the law. Thankfully, the new guidelines restore the rights of employers to maintain reasonable work rules.

The guidelines break typical handbook provisions into three categories – those likely to be legal, those that might be legal depending on the details, and those that are illegal. Obviously, these categories are to be used merely for general guidance and the legality or illegality of any handbook provision may turn on the specifics; e.g., any provision adopted/implemented, or selectively enforced purely to restrain union organizing or to interfere with other protected rights of employees, is unlawful. Nevertheless, General Counsel Robb’s guidelines are extremely helpful to employers and labor attorneys, alike, making handbook drafting much easier and much more predictable when it comes to complying with federal labor law.

Here are the categories and major types of workplace policy the General Counsel has placed in each:

Category 1: Rules that are generally lawful to maintain.

A. Civility rules.

B. No-photography rules and no-recording rules.

C. Rules against insubordination, non-cooperation, or on-the-job conduct that adversely affects operations.

D. Disruptive behavior rules.

E. Rules protecting confidential, proprietary, and customer information or documents.

F. Rules against defamation or misrepresentation.

G. Rules against using employer logos or intellectual property.

H. Rules requiring authorization to speak for company.

I. Rules banning disloyalty, nepotism, or self-enrichment.

Category 2: Rules warranting individualized scrutiny

A. Overly broad conflict of interest rules that do not specifically target fraud and self-enrichment and do not restrict membership in, or voting for, a union.

B. Confidentiality rules broadly encompassing “employer business” or “employee information” (as opposed to confidentiality rules regarding customer or proprietary information or confidentiality rules more specifically directed at employee wages, terms of employment, or working conditions).

C. Rules regarding disparagement or criticism of the employer (as opposed to civility rules regarding disparagement of employees).

D. Rules regulating use of the employer’s name (as opposed to rules regulating use of the employer’s logo/trademark).

E. Rules generally restricting speaking to the media or third parties (as opposed to rules restricting speaking to the media on the employer’s behalf).

F. Rules banning off-duty conduct that might harm the employer (as opposed to rules banning insubordinate or disruptive conduct at work).

G. Rules against making false or inaccurate statements (as opposed to rules against making defamatory statements).

Category 3: Rules that are unlawful to maintain

A. Confidentiality rules specifically regarding wages, benefits, or working conditions.

B. Rules against joining outside organizations or voting on matters concerning employer.

These guidelines are based on a balancing of employer’s rights to maintain a safe and productive workplace, through work rules, against the rights of employees to engage in protected, concerted activities. This differs drastically from the Board’s decisions in recent years, which emphasized only employee rights and viewed handbook provisions only in the hypothetical (i.e., “could they” restrain employees, not do they). With this in mind, employers are well advised in drafting any workplace policies to ask themselves: why do we need this work rule and what legitimate business purpose does it help accomplish? Answering this question not only helps craft well written, focused handbook provisions on employee conduct, it also supplies the sort of justification the new Labor Board will be willing to consider in determining the lawfulness of any handbook provision, by balancing the employer’s and employees’ rights.

_____________________________________________________________________________________

QUESTIONS? Contact Attorney James Sherman in our Minneapolis office at (952) 746-1700 or by email at jasherman@wesselssherman.com or contact the attorneys in our other offices

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Categories
Employee Handbooks

What Policies Should A Company Have in Their Employee Handbook?

What Policies Should A Company Have in Their Employee Handbook?

By Anthony J. Caruso Jr. of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Employee Handbooks on Monday, October 8, 2018.

An employee handbook provides communication between employer and employee as to the rights and responsibilities of each party. It is the basis for the terms and conditions of the relationship

What types of policies should be in the employee handbook of Illinois employers?

Below is a list of examples:

  • Employment Relationship Policy
  • Discrimination/Harassment/Violence/Bullying Policies
  • Compensation and Benefits Policies
  • Leave of Absence Policies
  • Reasonable Accommodation Policies
  • Policies Regarding Employee Conduct
  • Confidentiality Policies
  • Social Media Policies

What specific elements and specific policies should be included in the employee handbook of Illinois employers?

Under federal law, if you have 50 or more employees and have an employee handbook, your company is legally required to have the provisions of the Family and Medical Leave Act as a policy in the handbook.

Also, under federal and state law, employers with government contracts in excess of certain amounts are required to have an anti-harassment policy in their handbook.

I invite you to attend our upcoming teleseminar to get more information about what employee handbook policies are legally required in Illinois. See our website for complete details and registration information.

Questions? Contact Attorney Tony Caruso in our St. Charles office at (630) 377-1554 or by e-mail at ancaruso@wesselssherman.com.

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Categories
Discrimination

LGBTQ Rights vs. Religious Freedom – Fight Lasts for Another Day!

LGBTQ Rights vs. Religious Freedom – Fight Lasts for Another Day!

By Walter J. Liszka of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Discrimination on Monday, June 25, 2018.

On Monday, June 4, 2018, the United States Supreme Court issued its ruling in Masterpiece Cake Shop Ltd, et al. v. Colorado Civil Rights Commission, et al. Case No. 16-111 in which it ruled in favor of a Christian baker who had refused to bake a custom wedding cake ordered by a same-sex couple in the State of Colorado. As an aside, it is interesting to note that while this Case has been pending for at least six (6) years, at the time that the same-sex couple (Messiers Craig and Mullins) wanted to place their cake order, same-sex marriages were illegal in the State of Colorado. In point of fact, they planned to wed in Massachusetts and host a reception afterwards in Denver.

While the Supreme Court, in a 7-2 Decision (Alito, Breyer, Gorsuch, Kagan, Kennedy, Roberts and Thomas in the majority; Ginsberg and Sotomayor in the minority), decided the Case on very narrow grounds, it left clearly open questions concerning the First Amendment and religious objections to same-sex marriages for another day.

The Court held that the members of the Colorado Civil Rights Commission had displayed “an extreme hostility to religion” when adjudicating the alleged discrimination claims against Mr. Phillips, the owner of the Lakewood, Colorado Masterpiece Cake Shop, who had refused to make one of his custom wedding cakes for the same-sex couple, but did offer to allow them to purchase other items from his shop. The Court seemed to hinge its decision on the fact that a Commissioner by the name of Diann Rice, at the time of the Hearing, stated that:

Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust, and to me it is one of the most despicable pieces of rhetoric that people can use.”

The Court seemed to grab on to this rhetoric in a way to avoid deciding the more important issues of First Amendment and religious objection to same-sex marriages.

In point of fact, the Court indicated that the commentary of representatives of the Civil Rights Commission and the fact that no other Commissioner took issue with those comments was a basis to establish that those remarks evidenced a bias against religion that, in and of itself, violated the First Amendment Free Exercise Clause:

To describe a man’s faith as one of the most despicable pieces of rhetoric that people can use is to disparage his religion in at least two distinct ways: by describing it as despicable and also by characterizing it as merely rhetorical – something insubstantial and even insincere.”

The Court also seemed to take to task the Colorado Human Rights Commission predicated on their divergent decisions regarding three (3) other matters (Jack v. Gateaux, Ltd.; Jack v. Le Bakery Sensual, Inc. and Jack v. Azucar Bakery). In those Cases, one William Jack visited the three (3) bakeries and requested that two (2) cakes be made to resemble an open bible and to, using various bible verses, cast aspersion on same sex couples. In the Jack Cases, the bakers, while not refusing to make “Bible cakes”, indicated that the other requested language was “hateful”. When the bakeries refused to produce the cake, Mr. Jack filed his various discrimination charges and the Colorado Civil Rights Commission found that there was no probable cause to support Mr. Jack’s claim of unequal treatment and the denial of goods or services based on his Christian religious beliefs. Obviously, the decisions by the Colorado Civil Rights Commission in these two (2) separate and distinct matters seem to be in direct conflict.

While the Commission ruled against Mr. Phillips, in part on the theory that “any message on the requested wedding cake would be attributable to the customer and not the baker”, they did not address nor comment on that issue in the Jack Cases.

Obviously, the continuing issue of LGBTQ rights and religious rights will continue and one must hope that someday the United States Supreme Court will eventually issue a viable decision on that point.

Questions? Contact Attorney Walter J. Liszka in our Chicago office at (312) 629-9300 or by email at waliszka@wesselssherman.com

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