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Published on Tuesday, December 5, 2017

Quick Hits - December 6, 2017

Distracted driving caused by the boss? An online survey — conducted by Harris Poll for Travelers Insurance found that 43% of respondents who drive were in touch with work either by talking on the telephone (38%), texting (17%), or emailing (10%). Of those who engaged in work-related communication during their drive, 54% were 18 to 44 years old. More than a quarter of those who drive said that their employer called or texted them even though the boss knew the employee was behind the wheel. The survey also found 75% of the respondents who drive use their vehicles on the job, not just for commuting to and from the place of employment. It also touches on the question of liability in a distracted-driving accident caused by a driver who is using the phone for a work-related matter. Earlier this year, the American Association for Justice reminded employers that they could be held liable under the doctrine that they are vicariously responsible for the acts of their employees under certain circumstances, and that cases have been filed attempting to expand liability of employers and others involving distracted driving.  Source: Washington Post 12/1/17

IRS sends out proposed Employer Shared Responsibility Payment (ESRP) assessment:  IRS quietly announced what would be happening through its updated Employer Shared Responsibility Question and Answer site. The IRS has now begun issuing Letter 226J (sample copy here), which is its official notification of a proposed ESRP assessment for alleged noncompliance with Code Section 4980H. The IRS gives each employer a full opportunity — using Form 14764 enclosed with the Letter 226J — to dispute the calculation and provide additional information for the IRS to review before issuing any further liability assessment. Given that 2015 was the first filing year for the Forms 1094/1095, it is entirely likely that one or more forms filed were not completed correctly based on IRS guidance issued thereafter.  If you receive one, contact your attorney or accountant to respond to the letter.  Source: Jackson Lewis 12/1/17

NLRB GC to relook at issues from Obama era: The National Labor Relations Board’s General Counsel, Peter Robb, issued a memo that he wants the agency to re-review earlier decisions made during the Obama era.  These topics include cases in which workers engaged in “obscene, vulgar, or other highly inappropriate conduct” but may be protected by current board law; those involving the board’s Purple Communications ruling which allows workers to use company email systems for union business; rules barring workers from making recordings in the workplace; and those in which businesses may be joint employers under the board’s Browning-Ferris Industries joint employer standard. He also rescinded several outstanding memoranda issued under President Obama.  This included the 2017 guidance describing his view of the unfair labor practice rights of university students and faculty and his 2015 guidance laying out how board officials should review worker handbook rules.  Source: Law360 12/4/17

How can I pay an IC? Payment of Independent Contractors (ICs) by the hour is permitted, but this method of payment more closely resembles employment. Payment by the project, regardless of time spent working, is most appropriate for an independent contractor relationship.  Other methods will do, though, and a fixed payment by the day, the week, or the month can be workable too. Method of payment is just one of many factors in the analysis of Independent Contractor vs. Employee.  Incentive pay for contractors is permitted too. Some examples of bonuses that may be appropriate include: incentive for early completion of a project, incentive for achieving certain project-based goals, and incentive for accepting additional gigs.  The more closely the incentive can be tied to the project, the better. If properly classified, independent contractors are in business for themselves, and project-based retentions are most indicative of legitimate independent contractor relationships. Similarly, incentives should be project-based whenever possible.  Source: Baker Hostetler LLP 12/4/17

U.S. House of Representative employees to take sexual harassment training: On November 29, the House passed a resolution by voice vote aimed at combatting sexual harassment in that Chamber by requiring all members and staff to complete mandatory anti-harassment and anti-discrimination training during each session of Congress. The requirements include that all House members, officers, employees, interns, detailees, and fellows of the House of Representatives complete an anti-harassment and anti-discrimination training program during each session of Congress. Each individual has to complete the training within 90 days of the session. Newly hired staff must complete the training within 90 days of their hire date during the session. Each individual has to provide a certificate of completion to the Committee on House Administration; the training must be repeated every session of Congress.  The Committee on House Administration will issue regulations to ensure compliance and transparency. As part of the Committee’s extensive review, these regulations will be drafted and adopted by the Committee within 30 days of enactment of the Resolution.  Finally, the posting of a statement of the rights and protections will be provided to employees of the House of Representatives under the Congressional Accountability Act of 1995.  It is not known whether the training will be live or online.  Source:  CCH 12/4/17

Surviving the office holiday party: It's the holiday season and with that means jingle-themed music on the radio, travel plans to see family, and the oft-dreaded year-end company party. If you're the introverted type, the idea of going is probably enough to induce a moderate amount of anxiety. If socializing with coworkers galore and enduring hours of small talk with company higher-ups sounds like the last way you'd ever want to spend an evening, here are a few tips for surviving the big event. First, stay close to one or two people you're comfortable with but make sure you say hi to the boss.  You will get credit for facetime even if you limit who you hang with.  Second, if you're worried about falling short on the conversational front, jot down some topics in advance, and consult your cheat sheet right before the party.  That way you are not caught up in an “ah ah ah” situation.  Third, don’t drink too much.  Given that alcohol tends to loosen people up, so to speak, you don’t want to develop a reputation for a simple party mistake.  Finally, have an exit strategy.  You can offer up just about any reasonable excuse you desire, whether it's a previous engagement or the need to pick up a child from an after-school activity. Just have some story at the ready so that if you reach the point where you've had enough, you can put an end to your misery right then and there.  Source:  The Motley Fool 12/4/17

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