action lawyers and potentially very expen-sive for employers. So, what can you do to reduce your risk? Ignorance of the law is not a defense, so it’s up to employers to educate themselves and to keep an eye out for the kinds of com-mon mistakes that are likely to attract the attention of the DOL or plaintiffs’ lawyers. The following outlines the most common mistakes made by employers in the clean-ing and maintenance industry. 1. Treating employees as independent contractors Why bother with payroll taxes, unem-ployment insurance, workers’ compensation insurance, minimum wage and overtime when you can simply classify your workers as independent contractors? The short answer is that calling someone an independent contractor doesn’t make it so. Generally speaking, if you retain the right to tell a worker where, when and how to do the job, there is a good chance that the worker is an employee, not an independent contractor. Systematically misclassifying employees as independent contractors can lead not only to wage and hour investigations and lawsuits, but also to audits, fines and penal-ties from other government agencies such as the Internal Revenue Service (IRS) and state revenue departments. The odds of an audit by multiple agencies are now higher than ever, as difficult eco-nomic times and the potential to mutually enhance their revenue streams have led agencies to start coordinating their efforts. If you have independent contractors work-ing for your company, you should talk to an experienced employment lawyer and find out if you are at risk for a misclassification claim. 2. Splitting work One of the issues highlighted by the DOL in its fact sheet on the cleaning and mainte-nance industry is the practice of employing teams to perform work. Often, this goes hand in hand with treat-ing workers as independent contractors rather than employees. Under the Fair Labor Standards Act, every employee must be listed on the pay-roll and paid individually. Generally, a husband and wife, or other family members working together as a team, must each be compensated for all hours worked in compliance with state and federal law. 3. Poor recordkeeping Do you have reliable records show-ing exactly how many hours each of your employees worked and how much they were paid over at least the last three years? In wage and hour law, the notion of “inno-cent until proven guilty” does not apply. Rather, the law places the burden on employers to keep records of each employ-ee’s work hours and pay. In the absence of any records, the employee’s estimate of his or her work hours is given a great deal of weight, and the employer is forced to prove that the employee’s claims are false which, in the absence of complete records, is often dif-ficult or impossible. Federal law doesn’t mandate any particu-• CLEANS • DISINFECTS • DEODORIZES Nature-inspired disinfectant » ONE-STEP antimicrobial cleaner » No rinsing or wiping needed » Broad-spectrum hospital-grade disinfectant » Kill claims include TB, MRSA, H1N1, HIV » Economical AND ready-to-use EPA-Registered No. 34810-25-70385 Get a free white paper on “Why Deining Green is Often Gray” Visit ISSA Booth 1577 www.EnvironmentsHQ.com OR CALL 800-932-3030 Microban is a registered trademark of Microban Products Company. Circle Product Information no. 222 on page 32 www.cmmonline.com 47
CMM – Archives Oct 2011: 47
