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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.

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Become familiar with federal and state law regarding Independent Contractor Status and taxation.

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Discuss how Independent Contractor Agreements and Relationships can turn into employee-employer relationship even if all statutory requirements are met.

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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.

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Because brokers are expected to supervise licensees, the IRS allows real estate licensees to be considered Independent Contractors if:



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The individual is a licensed real estate professional;

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Substantially all of their payments must be directly related to sales or other output, rather than the number of hours worked; and

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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).

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It drastically increases the minimum salary levels employers must meet to claim certain FLSA exemptions from minimum wage and overtime pay.

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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:

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EAP Exemption: Minimum Salary Level ($913/week) ($47,476/ annually)

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HCE Exemption: $134,000/Annually

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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

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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

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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

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Overtime Final Rule and the Non-profit Sector: https://www.dol.gov/sites/default/files/overtime-nonprofit.pdf

Questions