The performance appraisal meeting is a time in which managers are asked to evaluate and communicate employee success and shortcomings throughout the review period. When ratings are anything less than stellar, the performance review meeting can be uncomfortable for a manager. That’s why some rush the process, gloss over important incidents, and even inflate ratings – all to avoid the discomfort that can sometimes come with delivering an honest evaluation of an employee’s performance.

While performance appraisal meetings can be difficult for some managers, they are an important part of the performance management process. The meetings serve as an interactive way for managers and employees to discuss past performance and identify goals for the next review period; goals that align with the overall goals of the company.

Below are 10 steps managers can take to help facilitate an effective performance appraisal meeting:

Plan and prepare. Encourage both managers and employees to prepare well in advance of the performance appraisal meeting. This will give both parties the time necessary to reflect on past performance and think about their goals for the next review period.

Take your time. To foster commitment, the employee should feel as though the proper time and consideration are given and that their manager is truly invested in their professional development. Plan the meeting for a date and time in which both parties are available. To circumvent the propensity to rush, try to avoid scheduling the meeting before an important deadline.

Confirm expectations. To put the employee at ease, start the meeting off by stating the goals and objectives of the appraisal meeting. Goals should focus on the exchange of performance feedback, the clarification of expectations, and the joint development of performance action plans. Employees should also be aware that the purpose of the review is to improve performance and foster professional growth.

Stay positive. Beginning the meeting with negative statements about the employee’s performance can lead to defensiveness. That’s why it’s important to start the meeting off on a positive note. Think of examples of when the employee impressed you and start with those before jumping into the areas that are in need of improvement.

Cite examples. When reviewing past performance, always refer to a specific situation or course of conduct to ensure the employee is aware of exactly what behavior is being praised or what behavior needs to be corrected. When citing examples, base it on a measurable job element. For example, a statement such as “three major projects were delivered two weeks before deadline” is more likely to strike a cord with the employee than “you did a great job turning around those three projects.”

Reinforce and motivate. The performance meeting should reinforce positive behavior and motivate employees to perform to their fullest potential. In doing so, managers should recognize employees for all of their hard work. Just remember that employees may be motivated by different things. For some, praise may be enough to motivate employees to achieve upcoming goals. For others, increased challenges, extra time off, or monetary rewards may be necessary. Before the meeting, think about individual motivators so that you can help to ensure motivation is sustained throughout the next preview period.

Develop an action plan for future performance. While it’s important to review past performance, the meeting should also focus on future performance and development. A forward thinking approach is often much more motivating than focusing on the past. To further cultivate motivation and commitment, managers should involve employees in developing a plan for the upcoming review period. In doing so, be clear about expectations and allow the employee to come up with their own solutions for meeting their goals. Also develop a contingency plan in case a problem arises. At the end of the meeting, the employee should be clear on the plan of action.

Give the employee time to speak. It’s important to give employees an opportunity to express their input regarding their own performance. Encourage employees to respond during the meeting by asking open-ended questions about their performance as well as their career development interests. If employees disagree with the evaluation, let them share their opinion and don’t get defensive.

Confirm understanding. At the conclusion of the meeting, confirm that the employee has fully understood what was discussed as well as the agreed upon plan for improvement. Recap the problems and solutions discussed and schedule a follow-up meeting to further assist the employee in reaching their goals.

Understand that the meeting is just the beginning. Performance appraisals are most effective when the manager follows up with the employee and makes the employee’s performance their priority. Check in with the employee regularly and provide feedback on a reoccurring basis.
Performance review meetings should never be one-sided. Managers should be encouraged to seek employee input regarding past performance and work with employees in setting future goals. Taking the time to plan the performance appraisal meeting and involving employees in the process can be an especially effective performance management tool.

A growing number of employers are participating in the E-Verify program to confirm the employment eligibility of newly hired employees. The web-based program checks whether the information on a new hire’s Form I-9 matches government records in Department of Homeland Security (DHS) and Social Security Administration (SSA) databases and whether the new hire is authorized to work in the United States.

Currently, more than 200,000 employers participate in the program, up from just 12,000 in 2006, according to the DHS. While some of these employers must do so because of federal contractor requirements or state- specific laws, many employers choose to participate voluntarily. However, employers that wish to participate in the program, even if voluntarily, may be subject to specific requirements. At least one state (Illinois) imposes certain notice, training, and privacy obligations on employers participating in the program.

While the Obama administration is encouraging more employers to register with E-Verify, employers should be aware of both the benefits and the responsibilities that come with participating in the program.

The following are 10 points to consider before enrolling in E-Verify:

1. The government’s case. DHS argues that E-verify is the best means available to determine the employment eligibility of new hires and the validity of their Social Security Numbers (SSNs). According to a recent report by Westat, a research firm under contract with DHS’s U.S. Citizenship and Immigration Services (USCIS), E-Verify queries result in an accurate verification status 96 percent of the time.  Only 0.7 percent of all E-Verify cases involve authorized workers who were initially found to be unauthorized, Westat found. The study also confirmed that the accuracy of the E-Verify program has improved significantly over the years.
2. Holes in the system. The reality is, however, that with regard to unauthorized workers, Westat found that about half receive an inaccurate finding of being work authorized, primarily because it is unlikely to catch instances involving identity theft. About 6 percent of all E-Verify cases involve unauthorized workers.
3. Enrollment process. To enroll in E-Verify, visit the E-Verify website, provide some basic information about your organization, and agree to follow the terms of the program. After your organization is enrolled, you can register yourself, and others within the company, to use the system.
4. Using E-Verify. The basic process to verify the employment eligibility of new hires begins by creating a case, which involves submitting information provided for Form I-9. Once E-Verify provides a final case result, the employer closes the case. If the system is unable to confirm the employee’s work authorization immediately, one of two responses will appear: “Verification in Process”, or “Tentative Non-confirmation” (TNC), which occurs when the I-9 information entered fails to match government records. There are specific requirements and procedures to follow when a TNC result is returned, as described in the next point.
    
5. TNC Results. In the event a TNC result is returned, the employer must notify the employee as soon as possible via the Notice to Employee of Tentative Non-confirmation. Sample TNC Notices and Referral Letters are available from DHS here. The employer must then review the notice with the employee in private, ask whether the employee contests the tentative result, note the employee’s decision on the notice, and ask the employee to sign and date the notice. The signed notice is to be retained with the employee’s I-9 with a copy to be given to the employee. If the employee contests the TNC, the employer must refer him or her to the SSA or DHS. Employers are prohibited from taking any adverse action against an employee who is contesting a TNC. Employers should check the E-Verify system periodically to see whether the SSA or DHS has provided a final case status. 
6. Restrictions. Before initiating an E-Verify query, employers must wait until the employee accepts a job offer and both parties have completed Form I-9. However, employers must make e-verification inquiries no later than the third business day after the new hire begins working for pay. Employers are prohibited from pre-screening applicants via E-Verify or delaying training or start dates based upon a TNC or a delay in the receipt of a confirmation of employment authorization. The use of E-verify is limited to new hires only.
7. All or none. Employers who participate in the program must use E-Verify for all new hires as long as they are enrolled in the program. Use of the system can never be done on a selective basis.
8. Recordkeeping. As all employers are required to do, those using E-Verify must also complete and retain Form I-9 for each employee. In addition to the standard I-9 requirements, employers using E-Verify must either record the E-Verify case number on the employee’s I-9 or print the case details and keep it on file with the employee’s I-9.
9. Notice requirements. Employers using E-Verify must post the English and Spanish versions of the E-Verify Participation Poster and the Right to Work Poster. These notices are available for download from our website here. Because these notices are intended to inform candidates that the employer participates in the E-Verify program, electronic notification is acceptable if posting the notice in a physical location wouldn’t be visible to prospective employees.
10. Leaving the program. An employer using the E-Verify system voluntarily may cancel their participation at any time. Employers can request to withdraw their participation via the E-Verify website.

An employee comes to you and says: “I’m having trouble getting to work on time because of medical treatments I’m undergoing.” What would you do? And, what would your supervisors do if an employee told them this?

The Equal Employment Opportunity Commission’s (EEOC) position, as it pertains to the example above, is that the employee has put you on notice that he or she is requesting a reasonable accommodation. An accommodation is any change in the work environment or in the way things are customarily done that enables an individual with a disability to perform the essential functions of the job and enjoy equal employment opportunities.

For example, in the scenario above, a reasonable accommodation may be to change the employee’s schedule so he she may arrive to work later, after treatment.

The Americans with Disabilities Act (ADA), as amended by the ADA Amendments Act (ADAAA), requires that employers with 15 or more employees provide a reasonable accommodation to a qualified applicant or employee with a “disability,” unless to do so would cause undue hardship.

Employers should follow certain guidelines when providing reasonable accommodations, as outlined below. The following is based on the EEOC’s enforcement guidance on reasonable accommodations:

Reasonable accommodation requests. A request for a reasonable accommodation does not need to reference the Americans with Disabilities Act and does not need to be in writing. The employee may use plain English, as in the example provided at the beginning of this article. Doing so puts the employer on notice. The request can be made at any time during the application process or at any point during the individual’s employment with the company.

Responding to a request. Once a reasonable accommodation has been requested, the employer should respond promptly. A best practice is for the employer to confirm, in writing, that a request has been made. Subsequently, the employer and employee should engage in an informal, interactive process to identify an appropriate reasonable accommodation.

Choosing the accommodation. The employer may choose among reasonable accommodations as long as the chosen accommodation is effective in removing the workplace barrier that is impeding the individual with a disability. Therefore, the employer isn’t required to choose the reasonable accommodation that the employee wants if there is more than one suitable option. During the interactive process, the employer may offer alternative suggestions for reasonable accommodations.

Rules pertaining to employees. In general, the employee (or a representative) is responsible for informing the employer of a need for a reasonable accommodation. However, an employer should initiate the interactive reasonable accommodation process without being asked if the employer: (1) knows that the employee has a disability; (2) knows, or has reason to know, that the employee is experiencing workplace problems because of the disability; and (3) knows, or has reason to know, that the disability prevents the employee from requesting a reasonable accommodation.

Rules pertaining to applicants. Before a conditional offer is made, an employer generally is barred from asking applicants whether a reasonable accommodation is needed for the job. An exception to this rule is when the employer knows that an applicant has a disability — either because it is obvious or the applicant has voluntarily disclosed the information — and could reasonably believe that the applicant will need a reasonable accommodation to perform specific job functions.

Asking for documentation. If the disability and the need for reasonable accommodation are obvious, the employer may not ask for documentation. If the disability and the need for reasonable accommodation aren’t obvious, an employer may ask the individual for documentation regarding his/her disability and functional limitations. The employer may require only the documentation that is needed to establish that a person has a disability as defined by the ADA, and that the disability necessitates a reasonable accommodation.

Examples of reasonable accommodation. Some examples of reasonable accommodations include, but are not limited to: (1) job restructuring, such as: reallocating or redistributing non-essential job functions, or altering when and/or how a function, essential or non-essential, is performed; (2) modifying work schedules; (3) acquiring or modifying equipment: (4) having the employee perform light duty work; and (5) making facilities accessible to the disabled individual.

Utilize available resources. Employers are urged to utilize the resources that are at their disposable. The Job Accommodation Network, for example, provides free assistance to employers with regards to job accommodations. Employers can search an online database for impairments and possible accommodations and can also contact JAN via phone or email with specific questions.

Undue hardship exception. An employer does not have to provide a reasonable accommodation that would cause an “undue hardship”. An “undue hardship” claim must be based on an individualized assessment of current circumstances that show that a specific reasonable accommodation would cause significant difficulty or expense. An employer cannot claim undue hardship based on employees’ (or customers’) fears or prejudices toward the individual’s disability.

Keep in mind state law. Some states have more stringent requirements than the requirements of the federal ADA. Employers covered by state disability laws as well as the federal Americans with Disabilities Act must comply with the law that provides more protection to individuals with disabilities. Be sure to check the applicable law in your state.

Following the guidelines outlined above can help to ensure that qualified employees and applicants with disabilities are provided with reasonable accommodations and equal employment opportunities. To be implemented effectively, supervisors and other employees should be trained on the ADA, any applicable state law, and how to respond if an applicant or employee requests a reasonable accommodation.

With the school year coming to a close, many teenagers are starting to think about summer employment. Minors typically bring energy and enthusiasm to their jobs and are often a welcome addition to any workplace. But, given the abundance of child labor requirements under the Fair Labor Standards Act (FLSA), in addition to new regulations scheduled to take effect this summer, employers must be cognizant of child labor laws when employing workers under the age of 18. .

Child labor laws are intended to protect the health, safety and well-being of workers under the age of 18 by establishing restrictions on working conditions and hours. To avoid non-compliance, it’s extremely important for employers to be aware of these requirements.

Below are 10 issues employers should keep in mind whenever hiring minors:

Minimum age. The FLSA sets the minimum working age for non-agriculture employment at 14, with a few limited exceptions. Those under the age of 14 can work in newspaper delivery, as an actor/actress, as a baby-sitter, or at their parent’s place of business.

Age verification. While federal law does not require minors to obtain work permits, many states do. Work permits are typically obtained through the minor’s school system or through the appropriate state agency, such as the state department of labor. Work permit requirements aside, all employers should obtain proof of age whenever hiring minors.

Minimum pay. All employees, including minors, must be paid at least the minimum wage per hour, except when opportunity wages or apprenticeship/student learner pay applies. New hires under the age of 20 may be paid an “opportunity wage” of $4.25 per hour during the first 90 calendar days of employment. Additionally, the federal Wage and Hour Division may issue special certificates allowing employment at wages below the minimum for apprentices, student learners, and messengers.

Permissible hours. Under the FLSA, the number of hours a minor can work in a given day as well as at what time of day the minor is permitted to work is dependent upon their age and whether or not school is in session. When school is in session, permissible work hours for 14 and 15 year olds are: 3 hours on a school day (including Fridays); 18 hours in a school week; 8 hours in a non-school day; and between the hours of 7 am and 7pm. When school is not in session, 14 and 15 year olds may work up to 40 hours a week, 8 hours a day, and between the hours of 7 am and 9 pm. There are no federal limits on workings hours for 16 and 17 year olds; however, many states do impose restrictions. Click here for the Department of Labor (DOL) chart on permissible working hours for minors by state.

Types of work. Minors under the age of 16 are generally excluded from all manufacturing, mining, processing, public messenger, or machine-tending work. They are also excluded from transportation, warehouse work, construction, communications, and public utility occupations, except for office or sales work in connection with these occupations. In addition, minors under the age of 17 are prohibited from operating a motor vehicle. Children under the age of 18 may not perform mining, logging, meatpacking, brick and tile making, or demolition jobs. Minors under the age of 18 are also prohibited from using saws and power-driven machines. The DOL has recently published regulations, effective July 19, 2010, that clearly specify permitted and prohibited occupations for 14- and 15-year old workers. An occupation must be included in the “permitted” occupations list to employ 14- and 15-year-old workers.

Driving restrictions. Workers 17 years of age and older may drive during daylight hours in a vehicle 6,000 pounds or less. The minor must have a valid driver’s license, have no record of moving violations at the time of hire, and have completed a state-approved driving course. The driving may not involve towing vehicles, urgent or time-sensitive deliveries, or the transport of three or more passengers at one time. In addition, 17 year olds may not drive beyond a 30-mile radius of the workplace and the driving must be “occasional and incidental” (i.e., the minor may spend no more than one-third of his or her workday, and no more than 20% of the workweek, driving).

Safety protocol. It’s recommended that in addition to ensuring minors are restricted from performing certain hazardous work, employers create safety guidelines that are specific to these employees. Consider creating a safety checklist for minor employees that addresses how to properly use approved equipment, what to do in the event of an emergency, and which hazards to stay away from. While company safety and health procedures shouldn’t solely focus on your younger staff members, such procedures should certainly be underscored for minors.

Training. Ensure your managers are aware of child labor laws by conducting training sessions explaining company responsibilities pertaining to the employment of minors. Managers should be knowledgeable of permissible work hours for minors so that work schedules can be written accordingly. In addition, mangers should be aware of the types of duties that are off-limits for minors.

Check state and local laws. State and local laws may differ from the guidelines outlined above. Employers are urged to check their state requirements prior to hiring minors.

Be mindful of new changes. New child labor regulations recently published by the DOL are effective July 19, 2010. The new regulations add additional permitted and prohibited occupations, additional industries in which minors may be employed, and redefine the term “week” for purposes of calculating the total number of hours a minor works within a week. For more information on the new child labor regulations, click here.
Hiring minors requires careful compliance with the law. Employers need to be mindful of their state requirements as they pertain to the minimum working age as well as the procedures for obtaining work permits. The hours in which minors are permitted to work and the types of jobs minors can perform must also be considered.

Offering unpaid internships is a common practice in the summer months. However, there are certain rules and guidlines that must be followed if no compensation is offered to the Intern. The Department of Labor has recently announced that it will step up enforcemet efforts targeting employers who offer unpaid internships with the goal of cracking down on employers violating federal wage and hour laws by having interns who do not qualify as trainees work without compensation.

There are 6 factors to consider when evaluating trainee status. ALL factors must be met.

1.  Training must be closely tied to education. To be unpaid, the internship must be similar to the training which would be given in an educational environment. In general, the more an internship program is structured around a classroom experience as opposed to the employer’s actual operations, the more likely the internship will be viewed as an extension of the intern’s educational experience. Under these circumstances, the intern does not perform the routine work of the business on a regular and recurring basis and the business is not dependent upon the work of the intern.

Recommendation: The student and the employer should develop an individualized training plan structured around the student’s classroom experience. The plan should be strictly followed and records of the types of training the intern received should be kept on file.

3.  The relationship is for the benefit of the intern. The DOL also requires that to be considered a “trainee,” the internship experience must be for the benefit of the intern, not the employer. If the intern is engaged in work that furthers the operation of the business or is otherwise performing “productive work” he or she would be considered an employee, and would therefore be covered under the FLSA’s minimum wage and overtime requirements

Recommendation: Tailor the program to introduce the student to a broad range of experiences aimed at advancing their knowledge of the field and preparing them for real work experience, without benefiting the company.

3.  The intern does not displace regular employees. The DOL also mandates that the intern not displace regular employees. Rather, the intern must work under close supervision of existing staff. If an employer uses interns as substitutes for regular workers or to augment its existing workforce during specific time periods, then the interns will be viewed as employees.

Recommendation: Provide job shadowing opportunities under the close and constant supervision of regular employees and consider assigning your interns a mentor.

4.  There is no immediate advantage for employer. The DOL also maintains that in order for the intern to be considered a trainee, the employer must derive no immediate advantage from the activities of the intern. In fact, on occasion, the employer’s operations may actually be impeded by the internship arrangement.

Recommendation: Any work done by the intern should be insubstantial in nature and secondary to the training process.

5.  The intern is not necessarily entitled to a job. The DOL also requires that the intern not necessarily be entitled to a job at the conclusion of the internship. Unpaid internships should not be used as “trial periods”. If an intern is placed with the employer for a trial period with the expectation that he or she will then be hired on a full-time basis, that individual would be considered an employee entitled to compensation.

Recommendation: Provide the intern, in writing, with the start and end dates of the internship. Also indicate, in writing, that employment at the conclusion of the internship is not to be expected.

6.   Both parties understand it is unpaid. Both the employer and the intern must understand that the intern is not entitled to wages for the time spent in the internship.

Recommendation: Clearly state, in writing, that payment for the intern’s services is neither intended nor expected. This is, of course, as long as all of the other factors listed above are met.

To be considered a trainee all of the above criteria must be satisfied. If any of these factors do not apply, then the intern is entitled to compensation under the FLSA. For employers with internship arrangements that meet the DOL’s 6-factor test, a regular evaluation of the internship relationship should be conducted. As interns gain experience and begin to perform meaningful work, their status as a trainee may change.

Payroll Tax Penalties

Today, one of the worst liens that are pursued by the IRS is payroll tax penalties. This is because the IRS tends to view a failure in depositing payroll taxes as theft. Usually a percentage of payroll tax deposit is taken from the paychecks of employees. As employees end up paying tax on time, business people too are expected to collect and deposit the amount to the IRS. And it is when these business people fail to make the required payments, the IRS just bears down on the business.
Falling into a payroll tax penalty is rather ugly and expensive as the tax code authorities permit the IRS to assess 100 percent penalty against the respective parties. This amount of a hundred percent penalty is calculated by assessing the amount of tax that is due to the IRS, and then doubling it. So if you fail to pay tax amounting to $20,000, you have to pay a penalty of $20,000 making the final amount you have to pay being $40,000. So looking at this 100% penalty, most business people think twice of avoiding paying their tax.

It is not that the IRS only goes after businesses for payroll tax penalties. In fact, the IRS has the authority of asserting payroll tax penalty against any person working in a business that collects payroll taxes of people, has previously deposited payroll taxes on behalf of tax payers and was once accountable to account for payroll taxes.
A person falling in any of these three groups too is personally pursued by the IRS for the amount that is due by them to the IRS. This stands good even if the person is not an owner or an officer of the respective business.
Sometimes a new business, a business with weak cash flow and businesses that can’t afford payroll penalties end up in payroll tax penalties. In such situations, it is possible to consider reducing the penalty. The first thing to be done is to approach the IRS and ask if it is possible to eliminate the penalty. This is possible if the underpayment of the payroll tax deposit is an exception and not a rule.
This means that if the business has been regular in paying payroll deposits on time, and failed in only one deposit, the penalty may be wavered. Basically, you have to prove to the IRS that the payroll tax penalty occurred out of unusual circumstances. However if the penalty is not eliminated, then it will be necessary for you to seek professional tax help for tips and guidance.

FRD refers to discrimination against parents or others with caregiving responsibilities. While your business may not be expressly prohibited from this type of discrimination, discriminating against an employee based on these factors may leave you susceptible to other types of claims (i.e., claims of sex, pregnancy or disability discrimination).

The following examples illustrate actions that may constitute FRD:

A female employee is denied a promotion for a job that requires extensive travel, despite being qualified, based on the assumption that a woman with children would not desire or perform well in a job that requires frequent travel.
A woman takes family leave to care for her ailing mother. Despite the absence of a decline in her performance, she is subsequently terminated.
An interviewer asks female candidates if they plan to have children when similar inquiries are not made of men.
A woman is reassigned to less desirable projects based on the assumption that, as a new mother, she will be less committed to her job.
What do all of these situations have in common? They are not only potentially forms of FRD but they might also constitute gender discrimination, which is expressly prohibited under federal law. To help prevent these types of biases from making their way into your workplace, consider the following guidelines:

Treat all employees the same. With regards to preventing discrimination claims, one of the most basic ways to avoid problems is by treating all employees, and applicants, alike. Discrimination laws aside, in order to ensure good employee relations and satisfied workers, equality is essential. When making employment decisions make sure you are relying on sound business reasons and not personal beliefs or preconceived notions.

Develop, disseminate, and enforce your EEO policy. Your EEO policy should clearly define which groups are protected from discrimination, communicate that employees are free to raise concerns without fear of reprisal, and remind employees of the company’s commitment to a workplace free of all forms of discrimination. If you receive a complaint of discrimination under your EEO policy, be sure to investigate promptly and thoroughly. And, when warranted based upon the results of the investigation, take corrective action.

Tread lightly. Because FRD can manifest itself as other types of discrimination, including sex and pregnancy discrimination, employers should be extremely careful not to inadvertently discriminate based on an employee’s family responsibilities. For example, failing to hire women who have children or plan to have children while hiring men who do is not only discrimination based on family responsibilities, but is also discrimination based on one’s sex. It’s important to make sure that these types of biases stay out of the workplace.

Only ask job-related questions. When interviewing candidates, focus on the applicant’s qualifications and only ask job-related questions. Avoid questions that are intended to uncover whether or not the applicant is married, has children, or plans to have children. If this information is revealed, the candidate may later claim that you failed to hire him or her for these reasons. To err on the side of caution, only ask questions that pertain to one’s ability to perform the essential functions of the job.

Train supervisors. Train managers and supervisors regarding discrimination against workers with caregiving responsibilities and the interplay between FRD and federal and state EEO laws. Stress that employees should always be evaluated based on performance and that all employment actions must be justified based on non-discriminatory reasons.

Establish a grievance process. Develop a system for employees to raise discrimination concerns, without fear of reprisal. Employees should be encouraged to bring these matters to the attention of their supervisor and to submit a formal written grievance with human resources or other member of management. If an employee brings to your attention that he or she feels as though they are being discriminated against, swift action is needed.

Always document. No matter how stellar the employee’s past performance or conduct has been, if there is ever a problem, document it! Taking an adverse employment action against an employee that has no record of poor performance may serve to support a claim that the action was due to his or her gender, disability, or other protected characteristic, and not because his or her performance was truly substandard.

Know your state laws. Your state-specific laws may allow for greater employee protections than federal law prescribes. For instance, some states do have protections in place for caregivers or employees with children, which are not currently covered under federal law within the private sector. In situations in which state and federal laws differ, the regulation that provides for greater protection for the employee must be followed.
As with all employment practices, the key to avoiding liability is to treat all employees – and applicants – alike, to rely on sound business reasons whenever making employment decisions, and to take swift action if it is believed an employee is a victim of discrimination. And, by promoting awareness for the issue, it lessens the likelihood that FRD will ever occur in the first place.

With today’s current financial situation, the IRS is stepping up their efforts to impose, inforce and collect payroll penalties like never before. Clients of payroll express never have to worry about payroll penalties because they are covered with the Payroll Express “Express Guarantee”.   See our website for details:  www.payrollexpress.com

The IRS reports that 45% of business’s are fined each year for filing payroll taxes late or incorrectly. These fines can be extreme. Today, one of the worst liens that are pursued by the IRS is payroll tax penalties. This is because the IRS tends to view a failure in depositing payroll taxes as theft! Falling into a payroll tax penalty is rather ugly and expensive as the tax code authorities permit the IRS to assess 100 PERCENT PENALTY against the respective parties. Without even considering the State penalty possibilities, a business can be penalized by the Federal government for:
a. Failure to file a payroll tax return.
b. Failure to pay a payroll tax.
c. Failure to withhold, deposit or pay payroll taxes.
d. Failure to file information returns.
e. Failure to furnish correct payee statements.
f. Failure to properly calculate tax liabilities.

We are often asked “How do you determine if someone is an employee or a contractor?” The answer to this questions isn’t as easy as one might think. As an aid to determining whether an individual is an employee under the common law rules, twenty factors or elements have been identified as indicating whether sufficient control is present to establish an employer-employee relationship. The twenty factors have been developed based on an examination of cases and rulings considering whether an individual is an employee. The degree of importance of each factor varies depending on the occupation and the factual context in which the services are performed. The twenty factors are designed only as guides for determining whether an individual is an employee; special scrutiny is required in applying the twenty factors to assure that formalistic aspects of an arrangement designed to achieve a particular status do not obscure the substance of the arrangement (that is, whether the person or persons for whom the services are performed exercise sufficient control over the individual for the individual to be classified as an employee). The twenty factors are described below:

1. INSTRUCTIONS. A worker who is required to comply with other persons’ instructions about when, where, and how he or she is to work is ordinarily an employee. This control factor is present if the person or persons for whom the services are performed have the RIGHT to require compliance with instructions. See, for example, Rev. Rul. 68-598, 1968-2 C.B. 464, and Rev. Rul. 66-381, 1966-2 C.B. 449.
2. TRAINING. Training a worker by requiring an experienced employee to work with the worker, by corresponding with the worker, by requiring the worker to attend meetings, or by using other methods, indicates that the person or persons for whom the services are performed want the services performed in a particular method or manner. See Rev. Rul. 70-630, 1970-2 C.B. 229.
3. INTEGRATION. Integration of the worker’s services into the business operations generally shows that the worker is subject to direction and control. When the success or continuation of a business depends to an appreciable degree upon the performance of certain services, the workers who perform those services must necessarily be subject to a certain amount of control by the owner of the business. See United States v. Silk, 331 U.S. 704 (1947), 1947-2 C.B. 167.
4. SERVICES RENDERED PERSONALLY. If the Services must be rendered personally, presumably the person or persons for whom the services are performed are interested in the methods used to accomplish the work as well as in the results. See Rev. Rul. 55-695, 1955-2 C.B. 410.
5. HIRING, SUPERVISING, AND PAYING ASSISTANTS. If the person or persons for whom the services are performed hire, supervise, and pay assistants, that factor generally shows control over the workers on the job. However, if one worker hires, supervises, and pays the other assistants pursuant to a contract under which the worker agrees to provide materials and labor and under which the worker is responsible only for the attainment of a result, this factor indicates an independent contractor status. Compare Rev. Rul. 63-115, 1963-1 C.B. 178, with Rev. Rul. 55-593 1955-2 C.B. 610.
6. CONTINUING RELATIONSHIP. A continuing relationship between the worker and the person or persons for whom the services are performed indicates that an employer-employee relationship exists. A continuing relationship may exist where work is performed at frequently recurring although irregular intervals. See United States v. Silk.
7. SET HOURS OF WORK. The establishment of set hours of work by the person or persons for whom the services are performed is a factor indicating control. See Rev. Rul. 73-591, 1973-2 C.B. 337.
8. FULL TIME REQUIRED. If the worker must devote substantially full time to the business of the person or persons for whom the services are performed, such person or persons have control over the amount of time the worker spends working and impliedly restrict the worker from doing other gainful work. An independent contractor on the other hand, is free to work when and for whom he or she chooses. See Rev. Rul. 56-694, 1956-2 C.B. 694.
9. DOING WORK ON EMPLOYER’S PREMISES. If the work is performed on the premises of the person or persons for whom the services are performed, that factor suggests control over the worker, especially if the work could be done elsewhere. Rev. Rul. 56-660, 1956-2 C.B. 693. Work done off the premises of the person or persons receiving the services, such as at the office of the worker, indicates some freedom from control. However, this fact by itself does not mean that the worker is not an employee. The importance of this factor depends on the nature of the service involved and the extent to which an employer generally would require that employees perform such services on the employer’s premises. Control over the place of work is indicated when the person or persons for whom the services are performed have the right to compel the worker to travel a designated route, to canvass a territory within a certain time, or to work at specific places as required. See Rev. Rul. 56-694.
10. ORDER OR SEQUENCE SET. If a worker must perform services in the order or sequence set by the person or persons for whom the services are performed, that factor shows that the worker is not free to follow the worker’s own pattern of work but must follow the established routines and schedules of the person or persons for whom the services are performed. Often, because of the nature of an occupation, the person or persons for whom the services are performed do not set the order of the services or set the order infrequently. It is sufficient to show control, however, if such person or persons retain the right to do so. See Rev. Rul. 56-694.
11. ORAL OR WRITTEN REPORTS. A requirement that the worker submit regular or written reports to the person or persons for whom the services are performed indicates a degree of control. See Rev. Rul. 70-309, 1970-1 C.B. 199, and Rev. Rul. 68-248, 1968-1 C.B. 431.
12. PAYMENT BY HOUR, WEEK, MONTH. Payment by the hour, week, or month generally points to an employer-employee relationship, provided that this method of payment is not just a convenient way of paying a lump sum agreed upon as the cost of a job. Payment made by the job or on § straight commission generally indicates that the worker is an independent contractor. See Rev. Rul. 74¬389, 1974-2 C.B. 330.
13. PAYMENT OF BUSINESS AND/OR TRAVELING EXPENSES. If the person or persons for whom the services are performed ordinarily pay the worker’s business and/or traveling expenses, the worker is ordinarily an employee. An employer, to be able to control expenses, generally retains the right to regulate and direct the worker’s business activities. See Rev. Rul. 55-144, 1955-1 C.B. 483.
14. FURNISHING OF TOOLS AND MATERIALS. The fact that the person or persons for whom the services are performed furnish significant tools, materials, and other equipment tends to show the existence of an employer-employee relationship. See Rev. Rul. 71-524, 1971-2 C.B. 346.
15. SIGNIFICANT INVESTMENT. If the worker invests in facilities that are used by the worker in performing services and are not typically maintained by employees (such as the maintenance of an office rented at fair value from an unrelated party), that factor tends to indicate that the worker is an independent contractor. On the other hand, lack of investment in facilities indicates dependence on the person or persons for whom the services are performed for such facilities and, accordingly, the existence of an employer- employee relationship. See Rev. Rul. 71-524. Special scrutiny is required with respect to certain types of facilities, such as home offices.
16. REALIZATION OF PROFIT OR LOSS. A worker who can realize a profit or suffer a loss as a result of the worker’s services (in addition to the profit or loss ordinarily realized by employees) is generally an independent contractor, but the worker who cannot is an employee. See Rev. Rul. 70-309. For example, if the worker is subject to a real risk of economic loss due to significant investments or a bona fide liability for expenses, such as salary payments to unrelated employees, that factor indicates that the worker is an independent contractor. The risk that a worker will not receive payment for his or her services, however, is common to both independent contractors and employees and thus does not constitute a sufficient economic risk to support treatment as an independent contractor.
17. WORKING FOR MORE THAN ONE FIRM AT A TIME. If a worker performs more than de minimis services for a multiple of unrelated persons or firms at the same time, that factor generally indicates that the worker is an independent contractor. See Rev. Rul. 70-572, 1970-2 C.B. 221. However, a worker who performs services for more than one person may be an employee of
each of the persons, especially where such persons are part of the same service arrangement.
18. MAKING SERVICE AVAILABLE TO GENERAL PUBLIC. The fact that a worker makes his or her services available to the general public on a regular and consistent basis indicates an independent contractor relationship. See Rev. Rul. 56-660.
19. RIGHT TO DISCHARGE. The right to discharge a worker is a factor indicating that the worker is an employee and the person possessing the right is an employer. An employer exercises control through the threat of dismissal, which causes the worker to obey the employer’s instructions. An independent contractor, on the other hand, cannot be fired so long as the independent contractor produces a result that meets the contract specifications. Rev. Rul. 75-41, 1975-1 C.B. 323.
20. RIGHT TO TERMINATE. If the worker has the right to end his or her relationship with the person for whom the services are performed at any time he or she wishes without incurring liability, that factor indicates an employer- employee relationship. See Rev. Rul. 70-309.
There are actually 20 different factors to consider according to the IRS.

The Internal Revenue Service (IRS) has just released Form W-11, the Hiring Incentives to Restore Employment (HIRE) Act Employee Affidavit. The purpose of the form is to confirm that an employee is a “qualified employee” under the HIRE Act. To benefit from the tax advantages under the HIRE Act, employers must obtain an affidavit from each qualified employee certifying that he or she has not worked more than 40 hours during the 60-day period ending on the date he or she began employment with the company.

Under the HIRE Act a “qualified employee” is one that meets the following criteria:

1.  Begins employment with you after February 3, 2010, and before January 1, 2011;
2.  Has not been employed for more than 40 hours during the 60-day period ending on the date the employee begins employment with you;
3.  Was not employed by you to replace another employee, unless the other employee separated from employment voluntarily or for cause; and
4.  Is not related to you.