Payroll s Five Biggest Pitfalls: Practical Guidance, Reporting Requirements and Compliance Procedures

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1 Payroll s Five Biggest Pitfalls: Practical Guidance, Reporting Requirements and Compliance Procedures FEATURED FACULTY: Vicki M. Lambert, CPP, President and Academic Director, The Payroll Advisor (702)

2 Vicki M. Lambert, CPP, President and Academic Director, The Payroll Advisor Vicki M. Lambert, CPP is an adjunct faculty member at Brandman University in Southern California and is the creator of and instructor for their Practical Payroll Online program. She is also the President and Academic Director of The Payroll Advisor a firm specialized in the training of payroll professionals. With over three decades of hands-on experience in all facets of payroll functions as well as over 20 years as a trainer and author, Ms. Lambert is a sought-after and respected voice in the practice and management of payroll issues. She has conducted open market training seminars on payroll issues across the United States as well as serving as an in-house trainer for businesses such as Sun Microsystems, Fox Studios, Disney, County of Riverside and the City of Hesperia. Ms. Lambert currently produces and presents payroll related audio seminars, webinars and webcasts for clients and business groups throughout the country.

3 **Certificates of attendance and CEUs, when available, must be requested through the online evaluation.** Evaluation for Live Event: We d like to hear what you thought about the audio conference. Please take a moment to fill in the survey located here: Requests for continuing education credits and certificates of attendance must be submitted within 10 days of the live event. Evaluation for CD Recording: Please use the following link to submit your evaluation of the recorded event: Please note: All links are case sensitive Receive 1.5 recertification credit hours toward PHR and SPHR recertification through the Human Resource Certification Institute (HRCI)! For more information about certification or recertification, please visit the HRCI homepage at "The use of this seal is not an endorsement by the HR Certification Institute of the quality of the program. It means that this program has met the HR Certification Institute's criteria to be pre-approved for recertification credit." APA Approved Provider: Receive 1.5 RCH by attending! Receive 1.5 CPE credits by attending the live Audio Conference! CCM is registered with the National Association of State Boards of Accountancy (NASBA) as a sponsor of continuing professional education on the National Registry of CPE Sponsors. State boards of accountancy have final authority on the acceptance of individual courses for CPE credit. Complaints regarding registered sponsors may be addressed to the National Registry of CPE Sponsors, 150 Fourth Avenue North, Suite 700, Nashville, TN, Web site: Program Level: Intermediate Prerequisites: This course is for participants with some exposure to the subject. Advanced Preparation: None Delivery: Group Live CPE Credits: 1.5 Recordings of the program do not qualify for CPE credits. For more information regarding administrative policies such as complaint and refund, please contact our offices at C4CM (2426).

4 1 About the Speaker 2 Vicki M. Lambert, CPP, is President and Academic Director The Payroll Advisor, a firm specializing in payroll education and training. The firm, through its website provides unique and expert services for anyone dealing with the complexities and technicalities of the payroll process. As an adjunct faculty member at Brandman University, Ms. Lambert is the creator and instructor for the Practical Payroll Online payroll training program, which is approved by the APA for recertification credits. 1

5 What is Our Focus for Today 3 1. Travel Pay 2. Auto Allowances 3. Regular Rate of Pay 4. Abandoned Wages 5. Taxing Prizes, Gifts, Awards and Cell Phones Pitfall #1 Travel Pay 4 The principles which apply in determining whether or not time spent traveling is working time depend upon the kind of travel involved. These are contained in to of the FLSA/ Portal-to-Portal Act 2

6 5 Home to Work Ordinary Situation An employee who travels from home before his regular workday and returns to his home at the end of the workday is engaged in ordinary work travel which is a normal incident of employment. This is true whether he works at a fixed location or at different job sites. Normal travel from home to work is not work time. 6 Home to Work Emergency Situations There may be instances when travel from home to work is work time. For example, if an employee who has gone home after completing his day s work is called out at night to travel a substantial distance to perform an emergency job for one of his employer s customers, all time spent on such travel is working time. Section And no before you ask we don t have an definition of substantial distance to give. The DOL does not provide one. 3

7 However 7 Where an employee is given prior notice (for example Friday night) that he will be required to work at a customer s place of business on Saturday it will not be considered as an emergency call outside of his regular working hours. 8 Home to Work on Special One-Day Assignments in Another City Problem arises when an employee who regularly works at a fixed location in one city is given a special 1- day work assignment in another city Considered hours worked for the travel as the employee is traveling for the employer s benefit 4

8 Travel That s All in a Day s Work 9 Travel spent by an employee in travel as part of his principle activity, such as travel from job site during the workday, must be counted as hours worked. Where an employee is required to report at a meeting place to receive instructions or to perform other work there, or to pick up and to carry tools, the travel from the designated place to the work place is part of the day s work and must be counted as hour worked regardless of contract, custom, or practice. Travel Away From Home Community 10 Travel that keeps an employee away from home overnight is travel away from home. Travel away from home is clearly work time when it cuts across the employee s workday The employee is simply substituting travel for other duties. 5

9 Traveling by Car 11 If an employee is offered public transportation but requests permission to drive his car instead the employer may count as hours worked either the time spent driving the car or the time he would have had to count as hours worked during work hours if the employee has used public conveyance. Yes, You Can Pay Differently 12 Travel pay can be paid at a different rate if that rate is equal to the applicable minimum wage and the employee is clearly informed of the different rate before the travel occurs. That is why the written policy is needed. 6

10 Vanpools and Van Pool Drivers 13 The transportation provided must be primarily for the benefit of the participating employees Participation is in the program is entirely voluntary and employees are free to accept or reject the arrangement at any time The employee-driver is chose by the participating employees The pickup times and route are established by the participating employees The employer has virtually no control over the arrangement Travel Pay and Overtime 14 If hours worked goes into overtime calculation If different rate can use weighted average Any pay premiums are included in regular rate of pay calculations Watch out for time differences and change of days Watch out for daily on state level 7

11 State Watch for Travel Pay 15 The states can vary widely on travel pay requirements. Some may match federal others will be stricter or the state may not even address the issue. Pitfall #2: Auto Reimbursements 16 Handling auto allowances correctly when is it taxable and when it is not Accountable and nonaccountable plans and how they apply to auto allowances 8

12 Auto Reimbursements 17 Falls under Per Diems or Accountable Plans 2014 per diem rate: is 56 cents per mile Must have a log Must list all requirements Nature of trip Actual Mileage Auto allowances fall under same rule Business Use Personal Vehicle 18 Acme Tile Company has 20 employees on its sales staff. Each sales person must call on 20 to 30 customers per week. The sales staff uses their own personal vehicles to make these calls. Acme pays each sales person a $500 per month auto allowance to cover the costs of using their own vehicles. This payment is made on the 15th of each month and paid through the accounts payable department. 9

13 Business Use Personal Vehicle Example 19 John Levy is one of the sales staff at Acme. In July he submits his auto log for the month of June. For all his sales calls, John logged 1,457.3 miles. Using the 2014 IRS standard mileage rate of 56 cents, his calculation would be done as follows: 1,457.3 x $.56 = $ Since $ exceeds the $500 payment, nothing needs to be reported to payroll. Example 2: Taxable 20 Joe Bumble is also a salesperson for Acme. In July he also submits his log. But Joe spent the majority of his time in June at Acme s two biggest clients and didn t do as much traveling as he usually does. The total mileage for his log is only 435 miles. We would do the calculation for his mileage as follows: 10

14 21 Business Use Personal Vehicle 2 nd Example 435 x $.56 = $ Since $ is less than the monthly payment of $500, the difference will be taxable to the employee Therefore, accounts payable must submit $ ($ $243.60) to the payroll department as taxable income for July Or the employee must return the excess to accounts payable No you cannot average over the year if paid monthly math done monthly Example 3: Totally Taxable 22 Acme does not require its sales staff to submit logs or any backup for the auto allowance that is paid each month That is a nonaccountable plan under IRS rules no paperwork Therefore the entire $500 per each sales staff member is taxable income for that month and must be reported to payroll 11

15 Pitfall #3: Regular Rate of Pay 23 What is regular rate of pay and how is it calculated The eight narrowly construed exceptions to inclusion of payments in the regular rate How to calculate the overtime premium Definition of Overtime 24 Overtime pay under the Fair Labor Standards Act is computed at 1 1/2 times the regular rate of pay for all hours worked in excess of the 40 hours in a workweek. There is no limitation on the number of hours an employee may work in any workweek, as long as they are compensated in accordance with the FLSA's requirements. 12

16 Regular Rate of Pay 25 It is a calculated rate and not just the file rate The employer must consider many different payments in accurately calculating the correct rate of pay for overtime hours. Regular Rate of Pay 26 In addition to the contract or file rate, any additional amounts paid for: shift differential, non-discretionary bonuses promotional bonuses cost of living adjustments 13

17 27 1. Does Not Include Gifts Sums paid as gifts, such as payments in the nature of gifts given during holidays or on other special occasions, or as a reward for service. The amounts of the gifts or payments may not be measured by or dependent on hours worked, production or efficiency. (29 CFR ) 2. Does Not Include Nonworking Hours 28 Payments made for occasional periods when no work is performed due to vacation, holiday, illness, failure of the employer to provide sufficient work, or other similar cause. 14

18 29 3. Does Not Include Expenses Reasonable payments for traveling expenses, or other expenses an employee incurs while furthering the employer s interests and that are properly reimbursable by the employer (such as laundering uniforms or buying supplies or materials on behalf of the employer); and other similar payments to an employee which are not made as compensation for the employee s hours of employment Does Not Include Discretionary Bonuses Sums paid in recognition of services performed during a given period if one of the following three conditions is met: both the fact that payment is to be made and the amount of the payment are at the sole discretion of the employer at or near the end of the period and not according to any prior contract, agreement, or promise causing an employee to expect such payments regularly. 15

19 31 5. Does Not Include Profit Sharing The payments are made pursuant to a bona fide profit-sharing plan or trust or bona fide thrift savings plan, which meet additional requirements set forth in the regulations Does Not Include Health or Life Contributions irrevocably made by an employer to a trustee or third person according to a bona fide plan for providing old-age, retirement, life, accident, or health insurance or similar benefits to employees. 16

20 33 7. Does Not Include Premium Pay Extra compensation paid at a premium rate for certain hours worked by an employee because such hours are hours worked in excess of eight in a day, or in excess of 40 hours in the week, or in excess of the employee s normal working hours or regular working hours, as the case may be. Such extra compensation may be creditable toward overtime compensation. (29 CFR ) Does Not Include Premium Pay Extra compensation provided by a premium rate for work by the employee on Saturdays, Sundays, holidays, or regular days of rest, or on the sixth or seventh day of the workweek. The premium rate may not be less than one and onehalf times the rate established in good faith for work performed in non-overtime hours on other days. Such extra compensation may be creditable toward overtime compensation. (29 CFR , 29 CFR ) 17

21 Regular Rate of Pay 35 Is an hourly rate Employers not required to pay employees by the hour but may pay by the hour, piece, salary, commission or other type of payment Overtime must be computed on an hourly basis Regular Rate of Pay 36 Computation of the hourly regular rate of pay is calculated as follows: 18

22 Now an Example with Numbers 37 Example Information: Employee is paid an hourly rate of $8.00 Works 46 hours in the workweek Employee receives a $10 commission for the week Step by Step Example With Bonus 38 Step 1: 46 x $8.00 = $ $10.00 = $ Step 2: $ / 46 = $8.22 Step 3: $8.22 x.5 = $4.11 Step 4: $4.11 x 6 = $24.66 Overtime Premium! Step 5: $ $24.66 = $

23 Pitfall #4: Abandoned Wages 39 When are wages considered abandoned What laws or regulations cover unclaimed wages What is payroll s responsibility relating to abandoned wages How to correctly report and remit unclaimed wages Liability issues if you have an outside payroll service Names and Definitions 40 Abandoned wages Unclaimed property Escheat Consists of various types of personal property including intangible. Items such as checking and savings accounts, uncashed checks, insurance refunds and wages are examples of unclaimed property 20

24 More Definitions 41 Holder Holders include financial institutions, business corporations and retailers The one who is holding the money has the liability to report the wages As the employer you are the holder for the wages Dormancy Period Period of inactivity Governed by state law 42 Why Are the States Involved? Each state is involved in unclaimed property as a service to the citizens of its state There is one place to look for the property State attempts to find the owner Money held forever until owner found Citizens benefit since earned interest is used to fund public programs 21

25 Uniform Unclaimed Property Act 43 Each state and DC have enacted a version of the law Considered a consumer protection law Revenue measure as well Various revisions-last one in 1995 The Laws 44 Each state has its own laws These include: When considered abandoned When to report/remit How to report/remit Due Diligence 22

26 Finding Those Laws 45 Google abandoned property or Link to states websites orting/ part of NAUPA (National Assoc. of Unclaimed Property Administrators) Look for holder reporting When Considered Abandoned 46 Wages are generally one year after becoming payable Example: California, Florida and Louisiana But the states can be different. Example: Kentucky, Maryland and Massachusetts: Three years after becoming payable Delaware: Five Years after becoming payable 23

27 47 When to Report/Remit Each state again has their own rule: Typical: Before Nov 1 of each year for any wages unclaimed as of June 30 that year AZ, HI follow this rule but CA requires 2 reports one by Nov 1 and 1 in June CT: Before March 31 of each year for wages abandoned as of the preceding Dec 31 NY: by March 10 for the period of January 1 thru December 31 of the preceding year How to Report 48 State usually has a report you can complete States allow electronic filing or internet Some require electronic filing only of reports Some only diskette or CD Some want paper with electronic filing Some still allow paper for small reporting of less than a certain amount of checks UPExchange is one of the free common software Another is HRS Pro Software 24

28 How to Report 49 Some states may have reciprocal agreement filing such as Massachusetts and Wisconsin usually not to California Negative reports may be required example OH Yes; MA No Aggregate reporting: may be allowed for small dollar amounts such as under $100 for MA be careful some states don t allow CT Due Diligence Reports may have to be filed with the state How to Remit 50 Remit can be electronic as well Some states require EFT if over a certain amount Example: CA required if over $20K Example: MA required if over $10K 25

29 What is Due Diligence? 51 Required to notify owners that their property is in danger of being escheated to the state This is known as due diligence May not be required by state May have threshold before required Example WI s threshold is $50 Examples: Due Diligence 52 CA: The holder shall send by mail, to the address of record, a notice not less than six nor more than 12 months before the time the account becomes reportable to the controller NV: This process, known as Due Diligence, must be completed not less than 60 nor more than 120 days before the report is filed for each owner whose balance is more than $50. 26

30 Due Diligence-Example Iowa 53 What Happens If a Company Doesn t Comply? 54 Most every state does have penalties These economic times, states are turning to revenue where they can get it Can range from $100 per report to up to 6 months in prison! Depends on the state In addition the interest on the monies that should have been turned over 27

31 Agent Issued Stale Dated Payroll Checks 55 If an employer uses a payroll processing agent to issue checks that clear on the agent s account, the agent will periodically notify the company of stale dated payroll checks that have not cleared their account. They will then redeposit these funds to the company s checking account and the checks will no longer be negotiable. The company then has the responsibility for controlling and reporting the re-deposited payroll checks as unclaimed. Agent Issued Stale Dated Payroll Checks 56 If the payroll processing agent does not redeposit stale dated payroll checks back to the company s account you need to contact the agent to determine if they review outstanding payroll checks for unclaimed funds reporting. If the agent reviews outstanding payroll checks for unclaimed funds reporting purposes then no additional work is required. If they do not then you should obtain an outstanding checklist from the agent, or the issuing bank, and request that funds for dormant accounts be returned so that they can be reviewed to identify reportable unclaimed accounts. 28

32 Pitfall #5: Taxing Prizes, Gifts Awards and Cell Phones 57 What to tax and when if you give out employee achievement awards for length of service or safety How to handle prizes, awards, and gift cards given to employees The latest on company supplied cell phones when to tax The latest on business use of a personal cell phone what to do with reimbursements Employee Achievement Awards 58 Length of Service and Safety only Tangible personal property Not disguised compensation Meaningful presentation No more than specific dollar amounts $1600 qualified plan $400 nonqualified plan 29

33 Length of Service Award 59 Will qualify only if either of the following apply: The employee receives the award after his or her first 5 years of employment The employee did not receive another length-of-service award (other than de minimis) during the same year or in any of the prior 4 years Safety Awards 60 Qualifies unless one of the following applies: Given to a manager, administrator, clerical employee or other professional employee During the tax year, more than 10% of your employees have already received a safety achievement award (not counting de minimis) 30

34 Bonuses, Prizes and Awards 61 Cash is taxable! So are all other types of payments Trips, tangible personal property or whatever! Doesn t matter what it is-if given as a prize, bonus or award it is taxable income Doesn t matter what you call the award Holiday Gifts/Gift Certificates, Cards 62 Can be De Minimis Cash or cash equivalent is taxable This includes gift certificates to supermarkets! Turkey rule applies Turkey, ham or similar item of nominal value at holiday time. Must be for the actual turkey not to store 31

35 Company Supplied Cell Phones 63 The value of an employer-provided cell phone, provided primarily for noncompensatory business reasons, is excludable from an employee's income as a working condition fringe benefit. Personal use of an employer-provided cell phone, provided primarily for noncompensatory business reasons, is excludable from an employee's income as a de minimis fringe benefit. Noncompensatory Business Purpos 64 You provide a cell phone primarily for noncompensatory business purposes if there are substantial business reasons for providing the cell phone. Examples of substantial business reasons include the employer's: 32

36 Noncompensatory Business Purposes 65 Need to contact the employee at all times for work-related emergencies, Requirement that the employee be available to speak with clients at times when the employee is away from the office, and Need to speak with clients located in other time zones at times outside the employee's normal workday. Noncompensatory Business Purposes 66 You cannot exclude from an employee's wages the value of a cell phone provided to promote good will of an employee, to attract a prospective employee, or as a means of providing additional compensation to an employee. 33

37 67 Reimbursement for Personal Cell Phones Used for Business If the employer requires the employee to maintain and use their personal cell phones for business purposes and reimburses the employee for the business use of their personal cell phones the following rules apply: 68 Reimbursement for Personal Cell Phones Must have substantial business reasons for requiring employee s use of personal cell phones in connection with employer s trade or business Definition same as for business cell phones 34

38 Reimbursement for Personal Cell Phones 69 Employee must maintain cell phone coverage that is reasonably related to the needs of the employer s business Reimbursement must be reasonably calculated so as to not exceed actual expenses the employee incurs Must not be a substitute for a portion of the employee s wages 70 Acceptable Reimbursement Arrangement Employee must communicate with employer s clients outside of normal business hours Employee s basic coverage plan charges a flatrate per month for a certain number of minutes for domestic calls Employer reimburses employee for the monthly basic plan expense to enable employee to maintain contact with business clients after hours 35

39 Unacceptable Reimbursement Arrangements 71 Reimbursement for international or satellite cell phone coverage for technician whose clients are in local geographical area Pattern of reimbursement that deviates significantly from a normal cell phone use in the employer s business Example: employee is reimbursed $100 per quarter in quarters 1-3 of the year but receives a reimbursement of $500 in quarter 4 Are There Any Questions? 72 36

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