Texas Employment Law Update : Texas Employment Lawyer & Attorney : Russell D. Cawyer : Kelly Hart & Hallman Law Firm : Dallas TX Labor Updates

This morning the meteorologist advised that our high temperatures in Texas won't dip below 100 for the foreseeable future.  I'm thankful I heeded my Kindergarten teacher's (Wanda Kite) advice to avoid anything ending up on my permanent record and I don't have to dig ditches for a living.  However, many Texans work outdoors everyday in these conditions and Texas employers need to take steps to ensure their employees have safe working conditions.

Secretary of Labor, Hilda Solis, has the following comments and recommendations:

Record heat is hitting the nation, putting outdoor workers at risk of heat-related illnesses, including heat exhaustion and heat stroke. Plan now so that you can take the precautions needed to protect outdoor workers during this heat wave:

• Have a work site plan to prevent heat-related illnesses and make sure that medical services are available to respond to an emergency should one occur.

• Provide plenty of water at the job site and remind workers to drink small amounts of water frequently — every 15 minutes.

• Schedule rest breaks throughout the work shift and provide shaded or air conditioned rest areas near the work site.

• Let new workers get used to the extreme heat, gradually increasing the work load over a week.

• When possible, schedule heavy tasks for earlier in the day.

OSHA has a number of resources to educate employees and employers on precautions that should be taken during this time of extreme heat.  You can check out those resources here. In the meantime, stay hydrated and cool to the extent  you can until late October when this heat is finally expected to break.

Follow me on Twitter @RussellCawyer.

Related Link:

Austin Enacts Mandatory Rest Breaks for Construction Industry

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Companies using independent contractors to perform work normally performed by employees beware; state and federal governmental taxing authorities are challenging those classifications in an effort to increase tax revenue on wages that are not properly reported.  According to a recent article by the Associated Press, "the Internal Revenue Service and 37 states are cracking down on companies that try to trim payroll costs by illegally classifying workers as independent contractors rather than as full employees." 

In September 2009, the IRS announced that it would (beginning in February 2010) audit at least 6,000 randomly-selected companies to investigate employment tax compliance.  Among other things, one of the areas targeted is worker misclassification as independent contractors. Companies may misclassify workers for a variety of reasons.  Companies have greater tax withholding obligations and employment tax liabilities with respect to employees.  Moreover, independent contractors are not entitled to overtime compensation, unemployment insurance and other employee benefits.  It is estimated that classification as an employee rather than independent contractor may add up to 30 percent to the labor cost of the worker.  The Government Accountability Office estimates that employee misclassification results in an estimated underpayment of $2.72 billion in social security, unemployment insurance and income taxes by companies annually.  

The 2011 federal budget proposes up to $3.8 trillion in spending measures to eliminate legal incentives for employers to misclassify employees, such as using budgeted funds to investigate, prosecute and penalize employers misclassifying employees as independent contractors and provide states with competitive grants to boost enforcement initiatives targeting misclassification.  There is also legislation introduced in Congress, the Taxpayer Responsibility, Accountability and Consistency Act of 2009, designed to make it more difficult to classify workers as independent contractors and to increase penalties for such misclassification. 

Secretary of Labor Hilda Solis also announced that her Department will hire more than 90 new wage and hour investigators and enforcement personnel to target worker misclassification.  According to Secretary Solis:

When employees are misclassified as 'independent contractors,' they are deprived of benefits and protections to which they are legally entitled. For example, independent contractors do not receive overtime and are ineligible to receive unemployment benefits. The FY 2011 budget includes an additional $25 million for a Misclassification Initiative to target misclassification with 100 additional enforcement personnel and competitive grants to boost states' incentives and capacity to address this problem.

With heightened Executive and Legislative enforcement efforts, companies using independent contractors should be sure their relationships have been vetted and are in strict compliance with the labor and tax laws.  The Departments of Labor and Treasury will surely be watching and scrutinizing those relationships.

Other Related Links:

Bill Would Make it Harder to Qualify Workers as Independent Contractors

Proper Classification of Workers as Employees or Independent Contractors May Reduce Litigation Exposure

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