1 : COMPENSATING MUNICIPAL AGENTS, OFFICERS, EMPLOYEES & INDEPENDENT CONTRACTORS Ben Goldman BIRMINGHAM MOBILE FAIRHOPE ATHENS
2 COPYRIGHT Please refrain from any photography, video, or other recordings of this presentation. C O P Y R I G H T b y B E N J A M I N S. G O L D M A N. A L L R I G H T S R E S E R V E D. This p r e s e n t a t i o n i s a c o p y r i g h t e d w o r k o w n e d b y B e n j a m i n S. G o l d m a n. W i t h o u t a d v a n c e w r i t t e n p e r m i s s i o n f r o m t h e c o p y r i g h t o w n e r, n o p a r t o f t h i s p r e s e n t a t i o n m a y be r e p r o d u c e d, d i s t r i b u t e d o r t r a n s m i t t e d i n a n y f o r m o r b y a n y m e a n s, i n c l u d i n g, w i t h o u t l i m i t a t i o n, e l e c t r o n i c, o p t i c a l o r m e c h a n i c a l m e a n s ( b y w a y o f e x a m p l e, a n d n o t l i m i t a t i o n, p h o t o c o p y i n g, o r r e c o r d i n g b y o r i n a n i n f o r m a t i o n s t o r a g e r e t r i e v a l s y s t e m ). F o r i n f o r m a t i o n o n p e r m i s s i o n t o c o p y m a t e r i a l e x c e e d i n g f a i r u s e, p l e a s e c o n t a c t : B e n j a m i n S. G o l d m a n a t H a n d A r e n d a l l L L C, P a r k P l a c e N o r t h, S t e , B i r m i n g h a m, A L , o r b y p h o n e a t ( )
3 DISCLAIMER We are going to very quickly cover highly specialized areas of law. This presentation is offered only as an introduction to the topics covered. We have way too much to cover to even consider talking about things that do not apply to this very special audience. Therefore, this presentation is focused upon the state of the law as it applies to the good folks situated right here in Alabama. If you are interested in the law as it applies in America Samoa, this seminar is not for you. Furthermore, this presentation will concentrate even more specifically on just those teeny, tiny areas of the law that apply to Alabama municipalities and the hard working, honest men and women who serve them. Oh yes, and the elected officials too.
4 AGENDA Agents Agency Independent Contractors Liability Considerations 1099s Officers Establishing Compensation Reimbursement Military Leave Employees Bonuses FLSA Minimum Wage Exempt v. Non- Exempt Overtime Public Safety Overtime Military Leave
6 WHY AGENTS, OFFICERS, AND EMPLOYEES? No city or town shall be liable for damages for injury done to or wrong suffered by any person or corporation, [1.] unless such injury or wrong was done or suffered through the neglect, carelessness, or unskillfulness of some agent, officer, or employee of the municipality engaged in work therefor and while acting in the line of his or her duty, or [2.] unless the said injury or wrong was done or suffered through the neglect or carelessness or failure to remedy some defect in the streets, alleys, public ways, or buildings after the same had been called to the attention of the council or other governing body or after the same had existed for such an unreasonable length of time as to raise a presumption of knowledge of such defect on the part of the council or other governing body.... ALA. CODE (1975). In most cases, true independent contractors do not fall under Section
7 WHAT IS AN INDEPENDENT CONTRACTOR? Generally speaking, the term independent contractor signifies one, who, exercising an independent employment, contracts to do a piece of work according to his own methods, and without being subject to the control of his employer, except as to the result of the work. 31 CORPUS JURIS, 473, note 25, quoted in Daves v. Rain, 178 So. 59, 62 (Ala. Ct. App. 1937).
8 CHARACTERISTICS OF AN INDEPENDENT CONTRACTOR No right of control over How, when, or where to do the work; What tools or equipment to use; What assistants to use; Where to purchase supplies. Contracted only for the term required to perform an identified service or task. Paid by contract and not on payroll (receive a 1099) May have a significant financial investment in their work Not reimbursed for expenses Opportunity for profit or loss
9 THE RIGHT OF CONTROL TEST In Alabama, the right of control test is used to determine whether a person is an independent contractor. The test for determining whether a person is an agent or employee of another, rather than an independent contractor with that other person, is whether that other person has reserved the right of control over the means and method by which the person's work will be performed. Martin v. Goodies Distrib., 695 So.2d 1175, 1177 (Ala. 1997). See also Moore-Handley Hardware Co. v. Williams, 238 Ala. 189, 195, 189 So. 757, 762 (1939).
10 THE FOUR RIGHT OF CONTROL FACTORS In determining whether a person is an independent contractor, we use the right-of-control test, and we consider four factors: (1) direct evidence of the right or exercise of control ; (2) the method of payment used; (3) whether the alleged principal had the right to terminate employment; and (4) the right to control another s time. Dickinson v. City of Huntsville, 822 So. 2d 411, 416 (Ala. 2001).
11 REQUESTING A DETERMINATION OF WORKER STATUS FROM THE IRS If there is uncertainty whether to classify a worker as an independent contractor or an employee, the company can request a determination from the IRS. To seek a determination, a company completes and returns a Form SS-8, Determination of Worker Status for Purposes of Federal Employment Taxes and Income Tax Withholding. Although it can take six months or more to get a determination from the IRS, companies that hire the same type of worker over and over again can benefit from seeking a conclusive determination, which they can rely on going forward in all relationships of that category.
12 Question: The test by which to determine whether a relationship, between a workman and those for whom he is rendering service, is that of employee-employer or independent contractor is: A. the actual exercise of control, B. the reserved right of control, C. whether a W-2 or 1099 is issued, or D. none of the above? AGENCY Answer: B. the reserved right of control. See Hodges & Co. v. Albrecht, 259 So. 2d 829, 830 (Ala. 1972).
13 LIABILITY ISSUES The general rule is that a municipality is not liable for the negligence of independent contractors. Robertson v. City of Tuscaloosa, 413 So. 2d 1064, 1066 (Ala. 1982). However, [a] municipality may be liable for the negligent acts or omissions of its independent contractor if the contractor is performing a nondelegable duty. A nondelegable duty is usually a specific duty imposed on the municipality by statute. Id. (citations omitted). Municipalities receive many powers from statute, but powers do not equal duties. See id. The municipality s immunity is subject to an exception for activities performed by an independent contractor which are inherently dangerous or ultrahazardous. Id. It may be in your municipality s best interests for your independent contractor to have liability and workers comp insurance.
14 IRS FORM 1099-MISC A statement of miscellaneous income provided by a company during a calendar year to certain service providers, including independent contractors. An IRS Form 1099-MISC must be: Distributed to the applicable service provider. Filed with the Internal Revenue Service. File Form 1099-MISC for each person to whom you have paid during the year: at least $10 in royalties or broker payments in lieu of dividends or tax-exempt interest; at least $600 in rents, services (including parts and materials), prizes and awards, other income payments, medical and health care payments, crop insurance proceeds, cash payments for fish (or other aquatic life) you purchase from anyone engaged in the trade or business of catching fish, or, generally, the cash paid from a notional principal contract (swaps) to an individual, partnership, or estate; any fishing boat proceeds, or gross proceeds of $600, or more paid to an attorney during the year.
16 ESTABLISHING COMPENSATION The legislature shall have no power to grant or to authorize or require any... municipal authority to grant, nor shall any... municipal authority have power... to increase or decrease the fees and compensation of [public] officers during their terms of office.... ALA. CONST., Art. IV, 68. See also ALA. CONST., Art. XVII, 281. Mayor s salaries must be fixed by the council not less than six months prior to each general municipal election; provided, however, the sixmonth requirement in this section may be waived when necessary to comply with a mandate by the U.S. Justice Department pursuant to the Voting Rights Act of 1965, as amended, or with an order issued by a state or federal court. ALA. CODE (1975).
17 You did not hear this from me, BUT even though an official s salary cannot be reduced in tough economic times, there is no prohibition against an official donating the proceeds from his or her salary to the municipality. GIVING BACK
18 BONUSES Municipal officers cannot receive bonuses. See ALA. CODE (1975).
19 No statutory or judicial requirement that Alabama municipalities reimburse officials or employees. However, the Attorney General s office has consistently opined that officials may be reimbursed for all expenses incurred in the performance of official duties. REIMBURSEMENT
20 REIMBURSEMENT FOR OUT-OF-JURISDICTION TRAVEL The Requirement To be a lawful reimbursement for out-ofjurisdiction travel, must present an itemized statement of all expenses incurred. ALA. CODE (1975). Itemized statement requirement does not apply to municipal credit cards in the possession of the official or employee. The Procedure When a municipality is governed by a commission form of government, such itemized statement shall be presented to the municipal comptroller or corresponding officer immediately upon the return of said officer or employee of such municipality and must be approved or disallowed at a regular meeting of the commission of such municipality held within a period of 30 days after presentment to municipal comptroller or corresponding officer. When a municipality is governed by a mayor and council, such itemized statement shall be presented to the treasurer of the municipality in similar manner as hereinabove provided for and shall be approved or disallowed at a regular meeting of the governing body held within a period of 30 days after presentment to the treasurer of the municipality. A LA. C ODE (1975) (bullets added for ease of reference).
21 ADVANCEMENT OF EXPENSES FOR OUT-OF-JURISDICTION TRAVEL The advancement must first be allowed by a resolution adopted by the governing body of such municipality..., which said resolution shall state the purpose and object of such proposed visit. ALA. CODE (1975). The itemized statement shall be presented immediately upon the return... [to the] municipality, and failure to present and have approved such statement shall render such officer or employee personally liable to... municipality for the sum advanced, which sum shall, if such officer or employee is drawing pay for his services from the municipality..., be deducted from any sum then or in the future owed by the municipality... to such officer or employee. ALA. CODE The City Council may not retroactively approve an advance, which was not properly made pursuant to these provisions. See Cassady v. Claiborne, 590 So.2d 339 (Ala. Civ. App. 1991).
22 PENALTY FOR VIOLATING OUT-OF-JURISDICTION TRAVEL RULES Any officer or employee drawing or approving any warrant drawn on the treasury of any municipality or county of this state in violation of the provisions contained in this article shall be guilty of a misdemeanor and shall be punished as provided by law. Ala. Code
23 FLAT EXPENSE ALLOWANCE Pros Cons
24 REIMBURSABLE EXPENSES Allowed Ultimately, up to the municipal governing body to determine Must be both reasonable and necessary Automobiles used solely for official municipal business Gasoline Business-related phone calls Automobile expenses/repairs Hotel rooms Meals Special planned events in connection with a meeting Travel expenses for select candidates for employment Moving expenses of new employees Not Allowed Expenses incurred by a spouse while traveling Telephone service at an official s home or business, even if he or she establishes his or her official office at either location Civic club dues
25 OFFICIALS MILITARY LEAVE The office of any official of... any... municipality of the State of Alabama who has heretofore entered or who shall hereafter enter the active military service of the United States,... shall not be deemed vacated by reason of the service, nor shall the service be deemed an acceptance of or the holding of an office of profit under the United States within the purview of Section 280 of the Alabama Constitution of A LA. CODE (1975). The council or other appointing authority may appoint a temporary acting official to serve for the duration of the absence and through 30 days following a notice of the regular official of his or her intent to return. See Ala. Code Does not extend the term of office.
27 BONUSES Sections 68 and 281, or Amendment 92, of the Constitution of Alabama 1901, prohibits granting extra compensation to employees after a service is rendered. The legislature shall have no power to grant or to authorize or require any county or municipal authority to grant, nor shall any county or municipal authority have power to grant any extra compensation, fee, or allowance to any public officer, servant, or employee, agent or contractor, after service shall have been rendered or contract made.... ALA. CONST., Art. IV, 68.
28 FAIR LABOR STANDARDS ACT The Fair Labor Standards Act of 1938 (FLSA) provides several protections, including payment of minimum wage and overtime for covered employees. See 29 U.S.C Its principal requirements are payment to covered employees of: A federally set minimum wage per hour. Overtime pay for time worked over 40 hours per week.
29 MINIMUM WAGE Since July 24, 2009, the federal minimum wage has been $7.25 per hour. Of applicable state and federal wage and hour law, whichever is most favorable to the employee governs. As of August 1, 2014, 23 states and D.C. have minimum wages above the federal minimum wage. 18 states, Guam, and the Virgin Islands have minimum wages the same as the federal minimum wage of $ states, American Samoa, and Puerto Rico have minimum wages below the federal minimum wage (the federal minimum thus applies). 1 state, New Hampshire, repealed their state minimum wage in 2011, but left the reference to the federal minimum wage. 5 states, including Alabama, have not established a state minimum wage.
30 FLSA COVERED EMPLOYERS AND EMPLOYEES Most public employers are covered under the FLSA. See 29 U.S.C. 203(d) and (e). All individuals employed by Alabama municipalities are covered under FLSA, except the following: (i) who is not subject to the civil service laws of the State, political subdivision, or agency which employs him; and (ii) who (I) holds a public elective office of that State, political subdivision, or agency, (II) is selected by the holder of such an office to be a member of his personal staff, (III) is appointed by such an officeholder to serve on a policymaking level, (IV) is an immediate adviser to such an officeholder with respect to the constitutional or legal powers of his office, or (V) is an employee in the legislative branch or legislative body of that State, political subdivision, or agency and is not employed by the legislative library of such State, political subdivision, or agency. 29 U.S.C. 203(e)(2)(C).
31 WORKERS NOT SUBJECT TO THE FLSA Workers who are not employees are not subject to the FLSA. The FLSA defines an employee as any individual employed by an employer. See 29 U.S.C. 203(e). Nonemployee workers not covered by the FLSA include: Independent contractors. Volunteers. Interns. Trainees. Nota bene: Employers must classify independent contractors correctly because stringent penalties, including back wages and overtime pay under the FLSA, can apply if the workers in question are found to be employees. Plus, misclassifying employees as independent contractors can create additional liabilities when employers fail to: pay employment taxes, pay unemployment and workers compensation insurance premiums, and provide participation rights in employee benefits plans.
32 EMPLOYEES EXEMPT FROM FLSA OVERTIME REQUIREMENTS As a matter of state law, Alabama does not have any generally applicable law establishing classifications that are exempt from minimum wage and overtime provisions. Certain categories of employees are exempt from the FLSA minimum wage and overtime pay requirements. Although there are several exemptions, the most common are: Administrative employees. Executive employees. Professional employees. Computer professionals. Outside sales employees. Highly compensated employees. 29 C.F.R
34 EMPLOYEES EXEMPT FROM FLSA OVERTIME REQUIREMENTS To be exempt under the administrative, executive, professional, highly compensated or computer professional exemptions, employees must generally meet both: The applicable exempt duties test, meaning the employee must spend a sufficient amount of time performing duties that qualify as exempt from the FLSA's overtime provisions. Each exemption classification requires certain types of exempt duties. The salary basis requirement or, for certain exemptions, the fee basis requirement, unless the employee is: a business owner; a teacher; practicing law or medicine; or a computer professional earning at least $27.63 per hour for every hour worked.
35 ADMINISTRATIVE EXEMPTION To qualify for the administrative exemption, an employee must meet each of these criteria: Be paid a salary or fee of at least $455 per week, exclusive of board, lodging or other facilities. Have a primary duty that entails: the performance of office or nonmanual work directly related to the management or general business operations of the employer or the employer's customers; and the exercise of discretion and independent judgment for matters of significance. The administrative exemption is meant to cover individuals with decision-making responsibility, as opposed to workers who merely execute pre-assigned tasks.
36 EXECUTIVE EXEMPTION For the exemption to apply, employees must either qualify as a business owner or meet each of these criteria: Be paid a salary of at least $455 per week, exclusive of board, lodging or other facilities. Have a primary duty that is management of: the enterprise in which the employee is employed; or a customarily recognized department or subdivision of the enterprise. Customarily and regularly direct the work of two or more other employees. Have the authority to hire or fire other employees or provide input on the hiring, firing, advancement, promotion or any other change of status of other employees.
37 PROFESSIONAL EXEMPTION To qualify for the professional employee exemption, employees must both: Be compensated on a salary or fee basis of at least $455 per week, exclusive of board, lodging or other facilities. Have a primary duty that is the performance of work: requiring advanced knowledge in a field of science or learning, customarily acquired by a prolonged course of specialized intellectual instruction; or requiring invention, imagination, originality or talent in a recognized field or artistic or creative endeavor.
38 HIGHLY COMPENSATED EXEMPTION Employees with total annual compensation of at least $100,000 are exempt from FLSA minimum wage and overtime requirements, if they: Are compensated on a salary or fee basis of at least $455 per week (or $380 per week, if employed in American Samoa by employers other than the federal government), exclusive of board, lodging or other facilities. Perform office or nonmanual work. Customarily and regularly perform any one or more of the exempt duties or responsibilities of an executive, administrative or professional employee.
39 Employees Never Exempt from FLSA Provisions Inspectors Firefighters Police officers Detectives Laborers Construction workers Correctional officers Parole or probation officers Park rangers Paramedics Ambulance personnel Emergency medical technicians
40 WHAT TIME COUNTS AS HOURS WORKED FOR FLSA? Whether time spent putting on (donning) and removing (doffing) protective gear, clothing and uniforms is compensable working time depends on the nature of the specific items and on where the donning and doffing occurred. In particular, courts will consider whether there was a mandate that the employee perform these activities at the reporting place. The general rule is that rest periods of under 20 minutes are compensable. These short breaks are considered primarily for the employer's benefit because they promote the efficiency of the employee. By contrast, bona fide meal periods are not considered working time. The employee must have sufficient time to eat the meal (ordinarily at least 30 minutes) and be completely relieved of work duties during this time. Under special conditions, a meal period of less than 30 minutes may be sufficient, although this depends on the facts of each case.
41 OVERTIME Nonexempt employees are entitled to overtime pay for work in excess of 40 hours per work week, "at a rate not less than one and one -half times the regular rate" at which they are employed during the work week. See 29 U.S.C. 207(a)(2). The DOL has issued extensive regulations defining the regular rate and explaining how to calculate overtime. See 29 C.F.R The main challenge for employers is determining which compensation elements to include or to exclude from the regular rate while allotting each item of compensation to the proper work week. In addition, some states require premium pay for hours worked in excess of a certain number in a day or for work on the sixth or seventh day of the work week. Salaried nonexempt employees are entitled to overtime just like hourly employees. It is the employer's responsibility to keep track of all nonexempt employees' working time. An agreement to pay a fixed salary to cover straight time for all hours worked is only valid where the salary is designed to cover short weeks as well as long weeks.
42 PUBLIC SAFETY OVERTIME The FLSA overtime requirements for public safety employees are different from those of other employees, because a specified number of work hours is needed within the FLSA work period before the FLSA rate can be applied to overtime pay. Their work periods vary from seven to 28 days, depending on the work period. Some police officers and fire protection employees have 28 -day work periods; some have 14-day work periods. These employees usually receive pay biweekly and have 28-day FLSA pay periods. They can report overtime hours throughout the FLSA period, but FLSA overtime regulations are not invoked until the employee works more than the maximum FLSA hours for the period. After the employee works the maximum FLSA hours for the period, you must pay all overtime over the maximum using the FLSA regular rate. You must pay overtime to fire protection employees for hours that exceed 212 in a 28-day period (in essence, a 53 hour work week). You must pay overtime to law enforcement employees for hours that exceed 171 in a 28 - day period. If the work period is fewer than 28 days, the hours are prorated. This enables you to balance work hours over an entire FLSA work period. The FLSA provides an overtime exemption to law enforcement or fire protection employees of a public agency that employs less than five employees during the workweek in law enforcement or fire protection activities.
43 Question: True or False. Generally speaking, off-duty time spent by a police officer maintaining physical fitness standards mandated by the officer s job is not compensable work within the meaning of the Fair Labor Standards Act. FLSA Answer: True. See Dade Cnty., Fla. v. Alvarez, 124 F.3d 1380, 1385 (11th Cir. 1997).
44 EMPLOYEES MILITARY LEAVE All municipal officers and employees who are members of a reserve component of the uniformed services shall be entitled to military leave of absence from their respective civil duties and occupations on all days that they are engaged in field or coast defense or other training or on other service... without loss of pay, time, efficiency rating, annual vacation, or sick leave. Notwithstanding the foregoing, no person granted a leave of absence with pay shall be paid for more than 168 working hours per calendar year, and those persons shall be entitled, in addition thereto, to be paid for no more than 168 working hours at any one time while called by the Governor to duty in the active ser vice of the state. Although pay is capped, benefits are not. Depending upon the municipality s policy, an employee may not be able to accrue additional sick leave and vacation time while on militar y leave. ALA. CODE (1975).
45 EMPLOYEES MILITARY LEAVE Job performance ratings, seniority, or any other job benefits may not be reduced due to the employee s absence. It does not matter whether the employee voluntarily joined or reenlisted. The legislative intent was to encourage public employees to join military units. For 168 hour calculations, a municipality may not pay an employee the difference in pay between their regular and military jobs; employees are entitled to receive pay for both. Employees must be continued as active and contributing members of the Employees Retirement System, if applicable. See ALA. CODE (b) (1975).
46 EMPLOYEES MILITARY LEAVE Differential pay after exhaustion of dual pay Optional benefits Health insurance coverage after exhaustion of dual pay
47 EMPLOYEES MILITARY LEAVE The Uniformed Services Employment and Reemployment rights Act (USERRA) of 1994, a component of federal law, also provides job security for employees who leave their jobs for military service. USERRA preserves the reemployment rights of employees engaged in military service. The Act does not preempt state laws which provide greater or additional rights (such as ALA. CODE (1975)). We do not have time to do a deep-dive into USERRA, but please note that it may have application in certain cases for municipal employees, such as pension contributions.
48 Question: Municipal employees and officers who are active members of the military and who are on military leave of absence: A. are entitled to no pay for hours missed, B. entitled to pay for no more than 6800 working hours per calendar year, C. entitled to pay for no more than 168 working hours per calendar year, or D. entitled to pay for an unlimited number of working hours per calendar year? MILITARY LEAVE Answer: C. entitled to pay for no more than 168 working hours per calendar year. See ALA. CODE (1975).
49 QUESTIONS? Benjamin S. Goldman Direct Dial: (205) Fax: (205) Goldman LinkedIn: Ben Goldman BIRMINGHAM MOBILE FAIRHOPE ATHENS
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