Three years ago, I floated the idea that perhaps an agency could come up with a modest “amnesty” program that would give employers a chance to get into compliance with FLSA laws, without facing the draconian consequences such an admission might entail.

Now, late yesterday, the United States Department of Labor announced its own pilot

In helping employers on wage and hour issues, I’m struck sometimes by the occasional failure to maintain proper records on their employees.

For employers, payroll companies now offer to help an employer with such records and can often provide some of the information once the employer shares it with them.

The Connecticut Department of Labor lists eight types of wage & hour records that all employers, regardless of size must keep. They are:

  • The employee’s name and address.
  • The employee’s occupation.
  • The total daily and total weekly hours worked, showing the beginning and ending time of each work period, computed to the nearest unit of 15 minutes.
  • The total hourly, daily or weekly basic wage.
  • The overtime wage as a separate item from the basic wage.
  • Additions to, or deductions from, wages each pay period.
  • Total wages paid each pay period.
  • Working papers/statements of age for each employee under the age of 18.

The employer must maintain these records on their premises, though I haven’t heard of the Department coming down on an employer when such records are maintained electronically in the “cloud” — which is technically off-site.

But employers should consider going beyond the minimum.  If the Department of Labor does decide to do an investigation, it is likely that they will seek the following eight types of documents, at a minimum:
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As I catch up from being at the ABA Annual Meeting, my colleague, Mick Lavelle, prepared this terrific little post about some long-standing labor statutes that employers should not ignore.

The Connecticut Department of Labor enforces statutes which were first enacted in the days when payroll records were paper documents, to be stored in filing cabinets.  

Continuing our occasional series of interviews with people of interest to human resource professionals in Connecticut, today we talk with Mathew Krukoski, CPA of J.H. Cohn’s Glastonbury, CT offices. Matthew is a Partner there and we had the opportunity to talk about the importance of having auditors review employee benefit plans, particularly as that employer grows. 

We’ll have some more of these types of interviews over the next few weeks as well.

1. You’ve been doing a lot more audits lately. For a company that is growing, at what point do they need to start bringing in an auditor to review their employee benefit plans?

A compliance review can be performed at any time. However, generally speaking, the Department of Labor requires an audit when a Company’s employee benefit plan exceeds 100 eligible participants at the beginning of the plan year. For growing companies with an existing plan, the filing requirements contain a provision, known as the "80-120 Participant Rule", that allow a plan sponsor to elect a deferral of the audit requirement until participation has exceeded 120 eligible participants at the beginning of the plan year. Once participation in a plan reaches 121 eligible participants or more, an audit will be required.

2. What types of tasks do you perform during an employee benefit plan audit?

An audit of a plan is not only for compliance with accounting principles generally accepted in the United States of America but also requires a review of its operations for compliance with Department of Labor and Internal Revenue Service laws and regulations. Procedures typically include a review of the plan’s internal control environment, testing of pertinent plan transactions (i.e., contributions, distributions, participant loans, etc…) and to ensure consistent application of the plan’s provisions. A sample of plan transactions are reviewed and tested at the plan level as well as for individual plan participants. The end product of an audit is a complete set of financial statements and auditor’s opinion that are required to be attached to the plan’s Form 5500 filing.

3. What are some common issues that you see when doing an audit?

Our audit compliance testing have revealed errors related to the calculation of participant contributions, the calculation of employer matching or profit-sharing contributions, the distribution of appropriate vested account balances and the utilization of a plan’s stated definition of compensation. However, for contributory defined contribution plans, the most common deficiency relates to the timely remittance of employee contributions.

4. A big topic of discussion lately has been the new 403(b) Plan Requirements. Can you talk about that a bit and what employers ought to be considering with respect to these plans?

In the past, sponsors of 403(b) plans had very limited reporting requirements. Beginning with the 2009 Form 5500 filings, the reporting requirements of these plans will become more in line with that of traditional 401(k) plans, including the Department of Labor’s audit requirement. Obviously, employers of large plans will need to engage an independent qualified public accountant to perform the audit of their 403(b) plan. However, the first item that a plan sponsor should focus on is the preparation of their plan records. This may involve talking with their ERISA attorney to clarify the need for an audit, talking with their service provider for the timing and availability of the plan’s financial information and potentially engaging the services of a third-party administrator to coordinate the recordkeeping and other compliance aspects of plan administration. Plan sponsors of 403(b) plans will need to allocate a significant amount of time and resources this year to understand and comply with the new reporting requirements.


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I don’t think it’s going out on a limb to suggest that 2009 brings about some of the broadest changes to employment laws in the United States this decade.  Socopyright Dan Schwartz, creative commons licenseme changes are already known, while others are forecasted to occur.  

Michael Moore, over at the Pennsylvania Labor & Employment Blog, has an excellent