Barbara’s Blog

Yes, if you check the definitions under the Affordable Care Act.  Definitions matter because they govern what rules you must follow. The Affordable Care Act has conflicting definitions for different purposes.

• Employer mandate to provide health coverage. Here you’re a large employer if you have more than 50 full-time employees on your payroll. If you do, then starting in 2014, you’ll have to provide affordable health coverage or pay a penalty (“play or pay”) (it’s much more complicated than this brief statement). By exclusion, you’re a small business exempt from this mandate if you have 50 or fewer employees.
• Health exchanges. Here you’re a small business if you have more than one but fewer than 100 employees. If so, you can use the Small Business Health Options Program (SHOP) to offer a menu of health coverage plans to employees. Unfortunately, however, SHOPs were supposed to be open on October 1 of this year to enable employees to select their coverage for 2014; employees have only a single plan until 2015. Note: Just to confuse things even more, states can limit participation in these exchanges to up to 50 employees until 2016.

Thus, if you have 60 employees, you must comply with the employer mandate in 2014 but you can put employees in the SHOPs if you don’t want to use private health insurance. Make sense?

Other federal laws
The Affordable Care Act isn’t the only place where definitions for small business are confusing. The Tax Code has more than a dozen different definitions for different purposes. Like the Affordable Care Act, some are based on the number of employees. However, some definitions are based on gross receipts, some on the value of assets, and one on the amount of equipment purchased in the year.

For your convenience, here is a partial list of federal laws that tie the definition of small business to the number of employees. If you have fewer employees than the number listed, you are exempt from complying with the law.

• Age Discrimination in Employment Act: 15
• Americans with Disabilities Act: 20
• COBRA: 20
• Equal Pay Act: 2
• Fair Labor Standards Act: 2
• Family and Medical Leave Act: 50
• Title VII of the Civil Rights Act: 15

State laws
States often adopt more stringent definitions to force smaller companies to offer benefits and rights to employees than otherwise required under federal law. For example, a number of states have “mini-COBRA” requiring companies that offer health coverage to extend continued coverage if they have as few as two employees. Check your state’s laws carefully to make sure you are in compliance.

Bottom line
Don’t assume you are a small business because you don’t view yourself as large. The government may put you into the “large business” category for some purposes even though you are still a small business. When in doubt, consult with a knowledgeable attorney on the area you are concerned about.

It seems to be the norm these days. The Bureau of Labor Statistics reported recently that the average number of hours worked by all types of full-time employees in the U.S. (other than on farms) in February was 34.5 hours (up 0.1 hour from January). Hours for those in manufacturing: 40.9 hours (up 0.2 hours). For owners, who knows? Many owners I know work 60 hours a week or more.

Impact on health

Do long work hours adversely impact health? An article in a scientific journal suggests they can kill you! Working longer than eight hours increases the chances of coronary disease by 40% to 80%. You certainly don’t want this for yourself or your staff.

Reasons for overwork

There’s no single answer for why you and your staff are putting in long hours. Examine which of these possible reasons apply in your situation so you can address them properly.

Technology

The ability to work after regular work hours is all too easy these days, with smartphones, tablets, and WiFi just about everywhere you go. The result: the boundary of the workday has virtually disappeared.

What to do: Limit business time during off hours. Mute devices and wait until business hours to respond to business communications.

Smaller workforce

The recession (which continues for many small businesses despite economic indicators) forces many companies to make do with the staff they have, even if it’s smaller than would be optimum. Employees who are still with the company must handle more work than when the company was fully staffed.

Even more problematic are the companies that are now flourishing and could use more help. Even if they could afford the substantial added cost of new workers (wages, employment taxes, workers’ compensation, and employee benefits your current staff enjoys), there’s a sticking point that isn’t easily overcome. If a company becomes a “large” employer (more than 50 full-time employees), it’ll be subject to the employer mandate for providing affordable health coverage (or paying a penalty) starting in 2014. The determination of whether an employer is “large” is based on 2013 payroll.

What to do: Some companies are alleviating overwork for existing staff by taking on part-timers (less than 30 hours a week). They can carry some of the extra work load without triggering the employer mandate in 2014. Determine whether part-timers may be a solution for your business.

Competitiveness

Maybe it’s compulsion that drives some people to work longer hours that may be required by an employer or the scope of the job. Certainly, with the lack of job security these days, many feel compelled to show their commitment to the company in the hopes of increasing their worth to the business (which is meant to create some job security).

What to do: Be clear to workers what is and is not required of them. Simply sitting longer at a desk and looking busy doesn’t help your business. For some types of businesses, it makes more sense to set tasks or projects that need to be completed; when they are done, the workday can end. Sometimes this may require extended hours, but good planning and scheduling can help to limit employees’ hours.

Final thought

As the saying goes: Stop and smell the roses.

Can you dictate what employees can and cannot do on social media? … Up to a point.

There’s some guidance on this from the National Labors Relation Board (NLRB) through rulings it has issued on specific cases and issuance of three memorandums.

These guidelines, which may be helpful in crafting a social media policy, apply to companies whether or not they are unionized.

1.    You can’t “chill” a worker’s right to discuss the workplace
You can’t limit employees’ rights to talk about workplace conditions, wages, or how other employees or the company is performing. Putting in a “privacy clause” (about not sharing personal information about co-workers) does not make such limitation permissible.

2.    You can bar “rants”
While talking about workplace conditions is permissible, ranting about it is not. What’s a rant? The NLRB says it is inappropriate comments and posts that are not part of a dialogue.

3.    You can require confidentiality for trade secrets
While employees can discuss workplace conditions, company policy can restrict their right to talk about trade secrets. However, you cannot threaten discharge or criminal activity for failing to report any disclosures.

4.    You can bar egregious behavior
You can limit employees from posting anything that is unlawful. This includes posts amounting to sexual harassment, threats of workplace violence, bullying, or malicious activity. You can also bar obscene language as part of an overall ban on egregious behavior.

5.    You can bar use of social media during work hours
Because the equipment is yours, you can dictate when and the extent to which it is used by employees for social media activities.

6.    You can’t bar an employee from outside posts
While you can suggest or request that employees refrain from discussing company matters on their own time (with their own equipment), you can’t bar it. However, the NLRB did uphold one company’s policy barring the display of a “bad attitude” or acting offensively.

7.    You can restrict the use of the company’s IP
Employees may be barred from using company logos and other protected marks for commercial purposes. However, they can use company marks for noncommercial purposes, such as in discussions of workplace conditions.

You can bar employees from using the company’s copyrighted material without permission.

8.    You can’t require employees to seek permission for posts
You cannot make employees ask permission before posting comments about workplace conditions. You can, of course, suggest that they check on whether other comments may or may not be related to non-disclosable confidential company information.

9.    You can’t bar discussions on the company’s labor policy
Whether or not the company is a union shop, employees cannot prohibit employees from talking about union activities. What’s more, if you implement a social media policy in response to any such activities, the NLRB likely will scrutinize it.

10.    You can require that employees disclose their posts as personal opinions
Employees can be barred from representing themselves as company spokespersons. When posting opinions, they should make it clear they are personal opinions and do not represent the company’s views.

Conclusion
Your company’s social media policy is not automatically permissible merely by including a so-called courtesy clause (a general prohibition against the use of unseemly remarks). Similarly, a savings clause (a statement that the policy will be administered in compliance with applicable laws and regulations) cannot cure ambiguities in a policy. Poor taste, for example, cannot be prohibited.

If you have concerns about your company’s social media policy, discuss this with an attorney knowledgeable about this matter.

If you do payroll in-house, expect to put in more time and money in 2013 to comply with your withholding obligations. Because Congress did not fix the fiscal cliff by the third week in December, it is too late for the IRS to change its withholding tables for January.

The American Payroll Association posted on its Facebook page on December 21: “we believe that employers should continue to use the 2012 withholding tables if they have to process their first payrolls of 2013 before any official guidance is released, as it is the only workable option.”

Down the road
Eventually, the tax situation will be resolved, allowing the IRS to revise withholding tables accordingly.

• If Congress retains 2012 tax rules. If Congress extends the 2 percentage point reduction in the employee share of Social Security taxes (part of FICA) as well as the tax rates for all individuals, then current tables, with some adjustments reflecting cost-of-living increases, will apply. Employees will see little or no changes in their paychecks.
• If Congress does not extend the Social Security tax break and/or retain current income tax rates. The IRS will issue new tables to reflect tax law changes. The tables will incorporate tax rates as of January 1. If, for example, the Social Security tax break is not extended for 2013, someone earning $50,000 would owe $1,000 more in this tax than he or she paid in 2012. This amounts to lower take-home pay of about $42 per paycheck (assuming paychecks are issued twice a month). If income tax rates are raised on high earners, their income tax withholding will reflect their added tax liability.

What is already new for 2013

• Regardless of movement on the fiscal cliff, some payroll tax changes are certain to apply starting in January. Higher Social Security tax wage base. Earnings up to $113,700 will be subject to the Social Security portion of FICA in 2013 (up from $110,100 in 2012).

• Additional Medicare tax on high earners. Employers must begin withholding for the 0.9% additional Medicare tax once an employee’s taxable pay exceeds $200,000. This withholding obligation applies even if the employee will not owe the tax (e.g., because he/she is married with a threshold for the tax of the couple’s earnings over $250,000).

You can find more information about withholding and the additional Medicare tax, which likely won’t apply to any employees until later in the year, here.

What to tell employees
Employees listening to the news about the fiscal cliff may be confused about what the news means for them. Here are some items to share with your staff:

• You are complying with tax law requirements on payroll withholding.
• If Congress fails to extend the Social Security tax cut for them, their paychecks will be smaller; you cannot do anything about this.
• Inform high earners about the new additional Medicare tax. High earners cannot request that you increase FICA withholding, but they can ask for additional income taxes to be withheld; these taxes can then be applied toward their FICA obligation when they file their Form 1040 for 2013.
• Regardless of any payroll changes, employees who have experienced or expect to experience life changes in 2013 (e.g., the birth of a child, the purchase of a home, or a spouse returning to or retiring from the workforce) may want to complete Form W-4, Employee’s Withholding Allowance Certificate, to make changes in their income tax withholding. More withholding allowances equals less withholding and more take-home pay; fewer allowances means less take-home pay.

Final thought
Confused? Who wouldn’t be at this point? It’s tough enough for employers to figure withholding on wages. With Congressional inaction making it impossible for the IRS to craft new tables for the start of 2013, it means that the rest of the year will be slightly off. When withholding tables are eventually released, they will have to take into account what was not done at the start of the year. Instead of doing payroll in-house, this year may be the time to use an outside payroll service. Whatever you decide, good luck.

It’s up to a company to decide whether to treat its workers as employees or independent contractors. The decision has wide-ranging tax consequences for the company.  For workers who are independent contractors, the company saves on payroll taxes (the employer share of FICA and unemployment tax), benefits (such as payments for health insurance and retirement plan contributions), and insurance (including workers’ compensation).

Expanded voluntary settlement program

You may recall that in September 2011, the IRS introduced a new program, called the Voluntary Classification Settlement Program (VCSP), to enable employees to reclassify their independent contractors as employees with reduced penalties and interest (only 10% of the employment tax liability otherwise due on compensation for the most recent tax year if workers had been classified as employees). The idea for the program was to encourage employers to reclassify workers by easing tax penalties.

Interested companies that had filed all required Forms 1099-MISC for their independent contractors could apply for participation in the VCSP. They had to agree to extend the statute of limitations (the period in which the IRS can start an audit) for three years after starting participation. Companies currently under any type of audit were barred from the program. (Q-and-As on the VCSP can be found here.)

Now the IRS has temporarily (until June 30, 2013) revised and liberalized the VCSP. Participation is allowed even if the company is under an income tax audit; it is only barred if under an employment tax audit. The company is not required to extend the statute of limitations.

Companies that failed to file required Form 1099-MISCs for their independent contractors can now apply to the program. However, they will be required to pay 25% (rather than 10%) of the employment tax liability that would have been due on compensation for the most recent tax year if workers had been classified as employees. They also owe a penalty, although reduced, for unfiled 1099s for the three previous tax years and will have to file such forms electronically for the previous three years for workers being reclassified.

Legislation proposed

Currently, the VCSP is not necessarily the best option for a company. As long as the employer has issued required Form 1099-MISC to its independent contractors and had a reasonable basis for this classification, it could rely on Section 530 of the Revenue Act of 1978 to minimize or even avoid back employment taxes. This relief provision could be raised if and when the IRS challenged worker classification.

A bill in Congress, entitled the Independent Contractor Tax Fairness and Simplification Act of 2012 (H.R. 6653) would repeal Section 530 relief. Of course, the likelihood of passage before Congress adjourns is slim to none. But the idea could be renewed in the new Congress, so stay tuned.

Bottom line

If your company has been treating workers as independent contractors, talk your tax advisor to make sure you are properly classifying these workers. You can’t arbitrarily pin an independent contractor label on a worker who is really an employee because of the level of control exerted by the company over the worker.

If you have concerns about worker classification, discuss the VCSP and whether it makes sense to voluntarily reclassify some or all workers and pay the taxes before the IRS challenges your classification and embroils you in an audit.

According to the annual Employee Benefit Research Institute (EBRI) Survey, “employer-sponsored retirement savings plans are an important savings vehicle for American workers.” In addition to helping employees save for retirement, employees increasingly turn to their companies to inform them about retirement issues.

You can help to meet employee needs by sharing certain information.

1.    Active participation status

If your company has a qualified retirement plan covering employees, you are required to report this on W-2 forms. More specifically, active participation status of employees is denoted in Box 13 of Form W-2.

Why is this information important for employees? It tells them whether they are subject to an IRS income limitation for making deductible IRA contributions. If they are active participants, they cannot deduct such contributions unless their modified adjusted gross income is below set limits.

Even if they are active participants, they can still save for retirement using a Roth IRA. Again, income limits apply here, but being covered by a retirement plan is not. Direct employees to IRS Publication 590 for details on IRA contributions.

2.    Opt out elections

If you have an automatic enrollment feature in your company’s 401(k) plan, you must give employees the right to opt out or to reduce the default salary reduction contribution. Usually this is done at least 30 days but no more than 90 days before the start of the plan year (most small businesses run their plans on a calendar year). Find more about the opt-out feature from the IRS; this includes the notice form you give to employees.

3.    Employer contributions

Depending on the type of qualified retirement plan used by your company, you may or may not be required to make any contributions on behalf of employees. Certainly, this is information that employees want to know.

If you make contributions and plan to change them in any way (e.g., reducing the percentage used to figure your contributions; changing the timing of contributions to an annual lump sum for employees still on the payroll at that time), you must notify employees in writing. You’ll find notice requirements buried in the IRS Checklist (it may be too late for changes for 2013, but check with your tax advisor).

4.    Loan options

Your qualified plan may permit participants to borrow money from their accounts. The tax law limits how much can be borrowed and requires repayment in level amounts over a period of no more than five years (with the exception of borrowing to buy a home). The plan sets the interest rate on the borrowing.

Tell employees, through a form letter or in the employee manual:

•  Who to contact (the plan administrator) if they want to take a loan.

•  What the loan means for plan participation. Usually, they are barred from contributing while the loan is outstanding.

•  Whether interest is deductible. This usually depends on whether the participant is an owner or other key employee.

5.    Special distributions

Usually, qualified retirement plans must bar distributions until employees retire or leave the job. However, distributions can be taken earlier (without disqualifying the plan) under certain circumstances:

•  Hardship distributions can be made if a participant has a serious financial need, such as paying funeral expenses for a spouse or dependent. The distribution is taxable to the participant (and subject to penalty unless a penalty exception applies).

•  In-service distributions to a participant age 62 or older who is still working for the company. Again, the distribution is taxable to the employee, but not subject to a penalty because he or she is over age 59½ (a penalty exception).

•  Distributions pursuant to QDROs (qualified domestic relations orders) for a participant who is getting a divorce or legal separation. The court can direct that benefits be paid to an “alternate payee,” such as the spouse. Such amount is not taxable to the participant but rather to the alternate payee.

Conclusion

If employees ask questions about your company’s retirement plan or their retirement planning that you can’t answer, consult with a tax or financial advisor.

On October 3, President Obama and Governor Romney met in a 90-minute debate focused on the economy. Questions touched on the economy, taxes, the deficit, energy, and education.

Each candidate talked a little about small business. How much is a little?

If my count is correct, President Obama mentioned the term “small business” six times, while Governor Romney did so eight times. But it was not the number of times small business was mentioned, but the substance of the comments that caught my ear.

I usually don’t get political when it comes to discussions about small business. However, I think some reasoned analysis is called for now.

Here’s my takeaway:

The President referred to Tax Code changes that helped small businesses, stating he lowered taxes for small businesses 18 times (while it is true that there have been some targeted tax breaks for small business, I couldn’t find those 18 separate times).

While saying he would not raise taxes on 97% of small business owners, he also referred to Donald Trump as a rich “small business owner.” This statement is perplexing and I’m sure that Trump would probably disagree with the President’s characterization of him. But if the President was basing his remark on the fact that the Small Business Administration (SBA) defines a small business as a company with up to 500 employees, then technically Trump might fit the bill (I haven’t seen his payroll).

What bothers me about the statement is that he could fit the bill. If so, then the President’s agency, in my opinion, should revise the definition of a small business to look at more than just the number of employees and take into account revenues and assets when classifying a company as a small business eligible for SBA-guaranteed loans and other programs.

Governor Romney noted that small business startups are down to a 30-year low and that this is a reason why jobs are not being created to the extent that they should (note that historically small businesses have created 60% to 80% of all new jobs).

He also pointed out that 54% of Americans work for small businesses in which owners pay taxes on profits on their personal tax returns (i.e., at personal income tax rates and not at the corporate rate); raising taxes on “wealthy” owners would further stymie job creation.

Small business owners I’ve talked to have indicated that they are staying on the sidelines when it comes to hiring because they don’t know what it’s going to cost them for doing so—in health care, taxes, and regulations.

Bottom line: It’s easy to say you support small business. It’s like mom or apple pie; no one is against it. But let’s see which candidate can walk the talk! I think that the debate provided an answer, but I’ll be watching to learn what others are concluding.

Now that the Patient Protection and Affordable Care Act has the U.S. Supreme Court’s stamp of approval, constitution wise, various provisions poised to take effect cannot be ignored any longer. These provisions mean more administrative chores for business owners. Here is a timetable that you can use to comply with new requirements.

Adopt new FSA limits
In October or November of this year, you’ll have to communicate with staff on changes to their FSAs. Starting in 2013, if your company has or is planning to adopt a flexible spending account (FSA), the most that employees can contribute on pre-tax basis is $2,500. Until now it was up to you to set the contribution limit; the average for most companies’ FSAs has been about $5,000.

Note: Technically, you have until the end of 2014 to amend your plan documents to reflect the new salary reduction contribution limit, but you must start operating the plan with the new limit in 2013.

W-2s
When you prepare employees’ W-2 forms in January 13, you have to report the value of their health coverage. This doesn’t change the tax treatment of this tax-benefit to employees; it remains tax free. However, now employees will know how much the business pays for coverage on their behalf.

Note: The IRS has exempted small employers (those who issue fewer than 250 W-2s in the previous calendar year) from this reporting requirement on 2012 W-2s. The IRS has not yet indicated when mandatory reporting for small employers will begin.

Summary plans
Employers must provide employees with a new Summary of Benefits and Coverage (“SBC”) no later than the first day of the first open enrollment period that begins on or after September 23, 2012. This is a standard statement of health benefits under a plan that enables employees to compare their coverage with other plans. The SBC must use uniform definitions. While the insurance company will prepare the SBC for employers to hand out, employers remain liable for any failure to give the SBC to employees. In fact, a willful failure results in a penalty of $1,000 per failure.

Find final regulations on SBCs here.

Withholding for additional Medicare tax
Starting in 2013, employers must withhold an additional 0.9% Medicare tax from wages that exceed $200,000. This is so even though married persons do not owe the tax until their combined earnings exceed $250,000. Employers do not, and in fact cannot, inquire about a married person’s spouse wages. There is no comparable payment by employers. Likely, this provision will not impact small companies until late in the year (no withholding is necessary until that income threshold is crossed), and perhaps not at all.

Employees can choose to have more income tax withheld from their pay, which they can apply toward the additional Medicare tax when they file their 1040s. This means submitting revised W-4s to employers for this purpose. Find more IRS guidance on employer obligations for the additional Medicare tax here.

Conclusion
While the new administrative chores don’t entail additional payments for benefits or taxes, there is still a cost involved in compliance. It takes money (perhaps additional charges by outside payroll companies), or at least your time, to avoid penalties that the Affordable Care Act can impose for failing to comply. Budget accordingly. And work with a knowledgeable tax advisor to ensure you have met all of your obligations.

Office pools for the NCAA Men’s Basketball Championship, the Super Bowl, and the World Series may be great for employee morale, but there is evidence that it takes a serious toll on productivity. According to one source, last year’s March Madness sapped more than $192 million in lost productivity (more than 8.4 million hours of work).

Of course, many believe that there is no significant impact on productivity and there are other benefits derived from having an office pool. One study last year found that “labor productivity may be slightly reduced on the short term, [but] employee cohesiveness may increase on the long term.”

March Madness merely points out the need for companies to consider their year-round policies about personal time for workers, the majority of whom have smartphones. Should time be restricted for personal calls? Personal time on the Internet?

Even if there is no formal policy for employees, owners can set the tone for the companies. How owners behave directly affects how staff behaves. You decide!

An article from the Fox Small Business Center got me thinking about the ability of small business owners to take time off for the holidays, or at any other time during the year. For many owners (e.g., retailers; those in the hospitality industry), the holiday season is crunch time and they can’t afford to be away from their businesses. Many employees of these small businesses also have to work despite the holidays.

Time off policy
Are you required to give employees time off for Christmas or New Years? While these two days are federally-designated holidays and federal workers typically get time off (December 26, 2011, for Christmas this year since it falls on a Sunday and January 2, 2012, because New Year’s Day is also on a Sunday), you are not legally required to give employees days off for federal or state holidays. Employees usually can be required to work on holidays, but many companies give specific days off.

Caution: You must make a reasonable accommodation for the religious practices of your employees, unless you can show that the accommodation would result in undue hardship for your business. Take this into account during this holiday season.

There are 10 federal holidays each year. According to Salary.com, most companies give nine or 10 of these days as paid holidays to employees. Some companies also recognize state holidays (e.g., Patriots Day in Massachusetts). Now is a good time for you to think ahead about the paid holidays you plan to give your employees in 2012. Find a list of federal holidays here.

A great resource to help you in making vacation decisions for your staff is Inc.’s  “How to Set a Workplace Vacation Policy.”

Closing for the holidays
For some businesses, the holidays are slow business-wise and an opportunity for owners and employees to enjoy time off. Decide whether this works for you, and what pay policy to apply to employees. Continuing to pay wages during this period can be a very well-appreciated holiday gift (provided that you can afford it).

Owner’s concerns
Many business owners start out with the notion that they are free to set their own work schedules, but soon reality sets in and owners find that they work long and hard, and have difficulty taking time off. Consider the benefits that time off during this holiday season can have for you:

• Health—those who do not take vacations experience more health issues and, according to one study, reduced life expectancy.

• Rekindle relationships—owners often short-change their family and friends throughout the year, so spending time with them now can be a big plus.

• Creativity—time away from the company can help you refocus your thoughts and energies.

Final thought
Whatever you decide to do about your vacation policy and time off, let’s all look forward to a prosperous New Year!