Independent Contractor Status and the New Federal Overtime Rule: Critical Information for Firms and RealtorsÂŽ VAR Legal Department
Objectives
Discuss the importance of Independent Contractor Agreements between firms and real estate licensees.
Become familiar with federal and state law regarding Independent Contractor Status and taxation.
Discuss how Independent Contractor Agreements and Relationships can turn into employee-employer relationship even if all statutory requirements are met.
Provide an overview of the new Federal Overtime Rule – this is especially important for firms with employees.
Employees vs. Independent Contractors
There
are obvious benefits for a firm to secure Independent Contractor Status for their agents.
Chief
among these is relief from federal and state taxes employers must pay on behalf of employees.
There
are a lot of factors that differentiate independent contractors from employees. The primary difference is the degree of control the business exerts over the individual.
Employees vs. Independent Contractors
Employers are generally able to direct when, how and where employees accomplish their tasks and responsibilities.
Because brokers are expected to supervise licensees, the IRS allows real estate licensees to be considered Independent Contractors if:
The individual is a licensed real estate professional;
Substantially all of their payments must be directly related to sales or other output, rather than the number of hours worked; and
Their services must be performed under a written contract providing that they will not be treated as employees for federal tax purposes.
If qualified under IRS regulations as an Independent Contractor, the firm is not obligated to withhold Virginia state income tax.
Employees vs. Independent Contractors The
state and federal statutes provide clear elements to establish an Independent Contractor Relationship.
Balancing
act: Brokers must provide proper supervision under the law, but not exert too much control.
A broker
exerting too much control can result in a licensee being classified as an employee even if the statutory Independent Contractor elements are met.
Employees vs. Independent Contractors
Firms, teams and licensees are increasingly hiring unlicensed assistants as employees.
Most employees are subject to Virginia worker’s compensation and unemployment laws. These statutes have carve-outs for real estate salesperson to remain Independent Contractors: Substantially all compensation is commissions; Services are performed under a written contract specifying the person is an Independent Contractor; and The contract includes a provision that says the person will not be treated as an employee for federal income tax purposes.
Department of Labor Overtime Rule
The U.S. Department of Labor recently issued a Final Rule effective December 1, 2016 concerning the Fair Labor Standards Act (FLSA).
It drastically increases the minimum salary levels employers must meet to claim certain FLSA exemptions from minimum wage and overtime pay.
If an employee is non-exempt from the FLSA under the new Rule an employer must pay the employee overtime for all hours an employee works over 40 hours in a work week.
The employer must pay the employee at a rate of one and a half times the employee’s regular pay rate for hours worked in excess of 40.
Department of Labor Overtime Rule Effective
December 1, 2016, employers must meet increased minimum salary thresholds in order to claim either the: 1) executive, administrative and professional exemption (“EAP Exemption”); or the 2) highly compensated employee (“HCE”) exemption.
EAP
stands for Executive, Administrative and Professional
HCE
stand for Highly Compensated Employee
Department of Labor Overtime Rule
As of the December 1 Effective Date, the Final Rule requires the following minimum salary levels be met in order to claim the FLSA’s exemptions from minimum wage and overtime pay requirements:
EAP Exemption: Minimum Salary Level ($913/week) ($47,476/ annually)
HCE Exemption: $134,000/Annually
We encourage you to read “Overtime Final Rule and the Nonprofit Sector” referred to on the Resources Slide
Department of Labor Overtime Rule Failure
to comply with the FLSA Rule can drastically impact you economically.
Violations
subject employers to civil monetary penalties of up to $1,100 per violation for willful or repeated violations of the FLSA. It allows employees to bring a private claim for: 1) back pay; 2) an equal amount in liquidated damages; 3) reasonable attorneys’ fees.
Resources
Independent Contractor Article by VAR Attorney Laura Farley: http://digitaleditions.sheridan.com/publication/?i=244974&p=22
NAR’s Guidance Document on the New Rule written by NAR Senior Counsel Lesley Walker: http://www.realtor.org/law-andethics/department-of-labor-new-overtime-rule
Fact Sheet: Final Rule to Update the Regulations Defining and Delimiting the Exemption for Executive, Administrative, and Professional Employees: https://www.dol.gov/whd/overtime/final2016/overtime-factsheet.htm
Overtime Final Rule and the Non-profit Sector: https://www.dol.gov/sites/default/files/overtime-nonprofit.pdf
Questions