Key Takeaways of the PHA Conference 2024

Key Takeaways of the PHA Conference 2024

00:00:02.890 –> 00:00:09.459
Erin Cahill: Welcome to CareSmartz360 On Air, a home care Podcast. I’m Erin Cahill, Account Executive at CareSmartz360.

00:00:09.500 –> 00:00:20.100
Erin Cahill: In the lineup of expert speakers. At the 2024 Pennsylvania Home Care Association Conference. Today we have Emina Poricanin, a prominent home care attorney on the penal.

00:00:20.820 –> 00:00:30.019
Erin Cahill: Emina has been an attorney for 15 years, representing the management employment issues, particularly in wage and hour class action, litigation, and vol audits.

00:00:30.150 –> 00:00:42.580
Erin Cahill: During the conference, she saw queries and gave additional information about wages and work hours, and Mina also explained various terminologies regarding employment types and home care. Welcome to CareSmartz360 on Ai. Yeah.

00:00:43.150 –> 00:00:44.619
Emina Poricanin: Thanks so much for having me.

00:00:44.910 –> 00:00:50.899
Erin Cahill: Of course. So let’s jump right into it. What are the basic rules for minimum wage? And over time.

00:00:51.410 –> 00:01:00.060
Emina Poricanin: Sure. And I’m amazed at how many times they still have to recite these on a weekly basis, because they’re the foundation of everything that we talk about and wage in our law.

00:01:00.070 –> 00:01:25.840
Emina Poricanin: So unless the employee is considered exempt, we’ll talk a little bit about that in a few minutes. But unless the employee is exempt, they have to receive at least minimum wage, and over time for all hours worked that our overtime hours now minimum wage is set by Federal law, but to the extent the State law sets a higher minimum wage, the State minimum wage rate will govern, and so that will be the rate that the employer will have to pay

00:01:25.980 –> 00:01:28.510
Emina Poricanin: for all hours worked over 40.

00:01:28.730 –> 00:01:33.690
Emina Poricanin: The employer has to pay overtime again to those non-exempt employees.

00:01:33.910 –> 00:01:50.889
Emina Poricanin: Now a lot of confusion comes into play about how to calculate overtime. Many, many payroll systems are not designed to correctly do that. And so, in addition to being a wage lawyer. For almost 2 decades, I have had a payroll Hr. And tax software that actually

00:01:50.890 –> 00:02:08.569
Emina Poricanin: has put the knowledge and experience of employment lawyers into the software to automate that compliance and the calculations. But the short end of it is for any overtime hours the overtime has to be paid, and the overtime, when there are multiple rates of pay to the employee.

00:02:08.680 –> 00:02:18.579
Emina Poricanin: have to be averaged out, or there’s an alternative method to come up with that overtime rate, a lot of math, a lot of math. And I think that’s why people get tripped up.

00:02:19.850 –> 00:02:20.825
Erin Cahill: That makes sense

00:02:21.480 –> 00:02:26.460
Erin Cahill: what counts as work time, and how to track and record it properly, and pay accordingly.

00:02:27.460 –> 00:02:54.569
Emina Poricanin: So there are so many ways to track it. The law doesn’t require employers to use any particular method of tracking, but as long as there is some tracking. And again, here we’re talking about non-exempt employees, those individuals who are eligible for overtime. And so it’s really important that at the end of the week the employer gathers up all of those hours in order to be sure if the employee crossed into overtime, and if the employee did

00:02:54.570 –> 00:03:06.229
Emina Poricanin: then they get paid the overtime rate, which is time and a half the regular rate. Now, what’s considered hours worked is very, very arguable and debatable within the homecare industry. Although

00:03:06.310 –> 00:03:12.800
Emina Poricanin: someone like myself, who’s a home care attorney and a wage and hour attorney, the rules are actually pretty clear.

00:03:13.040 –> 00:03:24.139
Emina Poricanin: If the employee is performing labor at the direction or in the benefit of their employer. The Department of Labor will consider that to the hours worked

00:03:24.140 –> 00:03:45.399
Emina Poricanin: where the confusion really arises has to do with people who work off the clock, meaning they come in a little bit earlier. They may even punch in earlier, or they stay late, and they punch out late. Those additional minutes tend to add up, and may even bring the worker into overtime hours. But because in home care

00:03:45.540 –> 00:04:02.140
Emina Poricanin: The reimbursement is so tight the employer will often shave what we call shave those extra minutes off of the compensable hours, and so the employee will be paid just for the authorized hours of work.

00:04:02.140 –> 00:04:26.789
Emina Poricanin: and not for those additional minutes that they clocked or or not have clocked. And so when we talk about what’s hours of work? It’s really important to just capture every minute of every labor, because the Department of Labor and class action plaintiffs often take the position that they have performed more work than what was captured on the time sheets, and that they were underpaid because they were not paid for all those hours.

00:04:27.720 –> 00:04:28.630
Erin Cahill: And Glenn.

00:04:29.240 –> 00:04:36.560
Erin Cahill: and you touched on this, of course, in the center. The next question was, how to calculate overtime. And what are the exemptions around overtime?

00:04:37.240 –> 00:04:55.469
Emina Poricanin: Sure. So let’s get into that a little bit to calculate over time. The math is actually really simple, and if you have one rate of pay in a week. The math is going to be rate of pay times 1.5, and that gives you what you have to pay as the rate 4 h 41. And above

00:04:55.470 –> 00:05:08.230
Emina Poricanin: the Ca, the computation is slightly different and complicated. If the employee works at different rates of pay in a single week, and or they receive additional compensation on some regularity, that

00:05:08.230 –> 00:05:27.169
Emina Poricanin: in the eyes of the law it does become part of the regular rate. So, for example, there are certain laws that will require the employer to provide benefits, but in order to incentivize home help dates to work instead of providing a benefit, they will pay cash in lieu of the benefit.

00:05:27.170 –> 00:05:56.179
Emina Poricanin: The Department of Labor takes the position that that additional cash needs to be part of the regular rate. And so, for example, if the employees regular rate is usually $15 per hour, and they are entitled to $2 and benefits. But the employer is paying $2 in cash instead. The usdol, for example, will take the position that the employees overtime rate should have been calculated on the basis of $17 per hour, not $15.

00:05:56.650 –> 00:06:06.980
Emina Poricanin: So these are the types of nuances that we try to capture at my payroll company and make sure that employers are aware to ensure that they’re doing the calculations correctly.

00:06:08.820 –> 00:06:12.830
Erin Cahill: Sure, and within that who classifies as a 2 depending.

00:06:14.430 –> 00:06:29.469
Emina Poricanin: So this is another area that really the Regulators focus on extensively who is an employee and who’s a consultant who is a contractor who’s a 1099. So 1099 gets to. And and.

00:06:29.880 –> 00:06:32.290
Emina Poricanin: Aaron, let me start that a little bit backwards.

00:06:32.510 –> 00:06:48.730
Emina Poricanin: Sure, this is also another area that is actually pretty heavily litigated and audited. The question of Who’s an employee versus the opposite of an employee, which is a contractor, or sometimes known as a gig worker, or a 1099 or a consultant.

00:06:48.730 –> 00:07:11.020
Emina Poricanin: Now, a 1099 is really a vendor. They are a vendor to your business. They’re providing a finite service. They’re pro. They’re providing a project-based service. And then they’re gone. A. W. 2 employee is someone who is there in the business with some regularity and consistency and is paid. Regular wages are eligible for overtime receives

00:07:11.020 –> 00:07:34.549
Emina Poricanin: unemployment, insurance and workers’ compensation coverage, and most importantly, maybe most expensively, the employer is required to pay income taxes on their wages, whereas a 1099 or a contractor, they get the flat rate or total sum of all of the hourly rates for their work with no deduction whatsoever.

00:07:34.900 –> 00:07:43.890
Emina Poricanin: and at the end of the year they’re able to deduct their expenses and then pay self-employment taxes on that reduced income.

00:07:43.980 –> 00:08:09.030
Emina Poricanin: So there’s a lot of tax advantages frankly, to being a 1099 or a contractor. And so a lot of individuals want to be classified as contractors, but the law takes a very shrewd approach. If it looks like a duck, it’s gonna be a duck. So if it looks like a contractor and not an employee, the Department of Labor, the IRS, and the Workers Compensation Board, all of these regulators that want the employer’s money.

00:08:09.030 –> 00:08:16.050
Emina Poricanin: We’ll take the position that the worker is or should have been, classified as an employee.

00:08:16.400 –> 00:08:32.819
Emina Poricanin: Now people often ask me, well, how do I determine if someone is a contractor or an employee. And I always say it depends on what law we’re looking at. If we’re looking at deciding this question for purposes of overtime, then the economic realities test really will govern.

00:08:33.090 –> 00:08:52.740
Emina Poricanin: which means in very simple terms that the Regulators will look to see if that worker is dependent on the business for their income, or if they’re truly in business for themselves if they’re serving other clients, if they have a book of business of their own, and they’re not working full time for this entity that has

00:08:53.094 –> 00:09:21.439
Emina Poricanin: been paying them on a 1099 basis. Then the Department of Labor is likely to find that this is a bona fide contractor, but if they’re working full time, if they’re eligible for benefits, if they are working in the office of the employer, they’re coming in regularly. They’re subject to the policies and procedures of the employer. If they look and act like every other employee, then the Department of Labor will find them to be an employee.

00:09:22.329 –> 00:09:23.680
Erin Cahill: That makes sense.

00:09:23.910 –> 00:09:27.039
Erin Cahill: And finally, what is the meaning of joint employment?

00:09:28.040 –> 00:09:49.620
Emina Poricanin: So join employment again, has different meanings depending on what law we’re looking at. But we’re talking about employment law here and in the context of, again, who receives overtime or not 2 unrelated entities, so 2 eins could be deemed to be a joint employer for purposes of overtime, so that if one employee works

00:09:49.620 –> 00:10:00.800
Emina Poricanin: 30 h for one business and 30 h for the other, there is a total of 60 h for the week, and those 2 companies again, even though

00:10:00.880 –> 00:10:15.239
Emina Poricanin: from a corporate standpoint, are completely separate and distinct, jointly owe that employee 20 hours of overtime for that week, because the hours will be deemed to be aggregated. The 2 companies, even though separate.

00:10:15.240 –> 00:10:34.159
Emina Poricanin: if they have some sort of a relationship. If the ownership is common, if the operations are commonly shared, if they are financially shared right. If there’s the same administration for the 2 businesses, even though they are from a corporate standpoint, separate and distinct, and may file their own taxes.

00:10:34.160 –> 00:10:45.260
Emina Poricanin: Norwegian. Our purposes they will be deemed to be one entity, which means all of the hours work by one employee across the 2 businesses will need to be aggregated for purposes of overtime

00:10:46.630 –> 00:10:47.460
Emina Poricanin: act.

00:10:47.460 –> 00:11:02.953
Erin Cahill: Well, thank you, Emina, for sharing these great insights. I’m sure the audience got in-depth knowledge about the meeting and classification wages and work hours here, and various deployment types. And to you, my wonderful audience, thanks for tuning in until the next episode, signing off.