The Magic number

Certain Laws Only Apply to Businesses With a Certain Number of Employees

Some laws apply only when your company has a certain number of employees. (Scroll down for a helpful chart.) We have seen businesses comply with laws when they did not have to (at great expense), and we have seen businesses fail to comply with laws when they were required to (at even greater expense).
“Magic Number” Example Number 1: Safety Records
For example, one subcontractor feared it was ineligible for a large job that it had bid on, after the GC informed the sub that it had failed to submit certain forms that the GC required. The GC wanted OSHA 300-A Summary of Work-Related Injuries and Illnesses forms for the past three years. However, the sub had not kept those forms, because the sub (mistakenly) believed that only employers with 25 or more employees were required to maintain those forms. Actually, OSHA regulations require employers with 11 or more employees to keep the 300-A Summary forms (unless some exemption applies, which would be unusual for construction-related businesses). This story happens to have a happy ending – turns out that the sub only had eight employees during the prior three years, so the sub still qualified for the job and avoided penalties under OSHA. But because the sub believed the threshold was higher and had no plans to maintain the 300-A Summary forms until it hired 25 employees, this could have ended differently.
“Magic Number” Example Number 2: Time Off
We have also seen voluntary compliance with the federal Family Medical Leave Act (the “FMLA”). In very short summary, this law requires employers with 50 or more employees to provide up to 12 weeks of unpaid leave during a one-year period for eligible employees. Among other things, this law generally requires that employers: reinstate eligible employees to the same or an equivalent position when they return to work; maintain benefits in a specific way during the leave; and give specific notices to employees. For those employers who are subject to the FMLA, there are penalties for failure to comply. (To be eligible, among other things, employees must have worked for the employer for one year, must have worked 1,250 hours during the year before the leave begins, and must work at a location within 75 miles of a site where the employer employs at least 50 people.)
If a business does not employ 50 people, the business does not have to offer the leave required by the FMLA. Smaller businesses have the flexibility to craft a customized leave policy that treats employees with dignity and flexibility in the event of an emergency or family issue, but that balances the company’s absenteeism policy, the limited resources of the small business, and the right to permanently fill the employee’s position. Smaller businesses may create policies, for example, for parental leave, personal leave, or bereavement leave. Also, smaller businesses can choose to offer leave that mirrors the FMLA without actually referring to the FMLA itself. In fact, courts have held that employers may be responsible for complying with the FMLA, even if the employer has fewer than 50 employees, where the employer specifically referenced the “FMLA” in documents provided to employees.
So what is the “magic number”? You should not have to guess. Below is a list of some laws that may apply depending upon the number of employees a company has:
Number of Employees
Applicable Law and General Description
All Employers
Fair Labor Standards Act (federal): Requires employers to pay overtime rates to non-exempt employees who work more than 40 hours in a work week.
All Employers
National Labor Relations Act (federal): Prohibits interference with unionization and activity to improve working conditions.
All Employers
Uniformed Services Employment and Reemployment Rights Act (federal): Protects service members’ rights, including those called up from the reserves or National Guard.
10 or more
Florida Private Whistleblower Act (Florida Statute Sections 448.101-448.105): generally, prohibits retaliation against employees who disclose an employer’s violations of the law to a governmental agency (after giving the employer written notice and an opportunity to correct the practice), participate in an investigation of the employer’s alleged violation of the law, or refuse to participate in any activity that is in violation of the law.
11 or more
Occupational Safety and Health Administration recordkeeping regulations (federal): Requires recordkeeping for injuries and illnesses, unless an exemption applies. Note that all employers covered by OSHA (not just those with 11 or more employees) must report to OSHA any workplace incident resulting in a fatality or the in-patient hospitalization of three or more employees within 8 hours.
15 or more
Americans with Disabilities Act (federal): Prohibits discrimination against people with disabilities.
15 or more
Title VII of the Civil Rights Act of 1964 (federal): prohibits discrimination against people on the basis of race, color, religion, national origin, or sex; and prohibits retaliation after a complaint is made.
15 or more
Pregnancy Discrimination Act (federal): prohibits discrimination against women because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth.
15 or more
Florida Civil Rights Act of 1992 (state): prohibits discrimination against people based upon race, color, religion, sex, national origin, age, handicap, or marital status.
Fewer than 20
Florida Health Insurance Coverage Continuation Act (state “mini-COBRA”): generally requires that a group health plan issued to a small employer must provide that each qualified beneficiary who would lose coverage under the group health plan because of a qualifying event is entitled, without evidence of insurability, to elect, within the election period provided by law, continuation coverage under the employer’s group health plan.
20 or more
Consolidated Omnibus Budget Reconciliation Act (COBRA) (federal): generally requires that group health plans sponsored by employers with 20 or more employees in the prior year offer employees and their families the opportunity for a temporary extension of health coverage in certain instances where coverage under the plan would otherwise end.
20 or more
Age Discrimination in Employment Act (federal): prohibits discrimination based upon age against people who are 40 years old or older.
50 or more
Family Medical Leave Act (federal). See above.
50 or more
Florida’s Domestic Violence Leave Law (Florida Statute Section 741.313) (state): requires an employer to permit an employee to take up to three working days of leave in any 12-month period if the employee or a family or household member of an employee is the victim of domestic violence or sexual violence.
A few more things to know:
We encourage all businesses, regardless of the number of employees, to comply with all laws, regulations, and ordinances prohibiting discrimination, harassment, retaliation, and hostile work environments, and that promote the safety, health, welfare, and dignity of all employees and applicants.
This list is not exhaustive. Other employment laws may apply to your business.
Some businesses are exempt from certain requirements, regardless of size. For example, certain low-hazard types of businesses do not have to comply with certain OSHA recordkeeping requirements.
The “magic number” for the application of each law is subject to change.
The relevant period during which the required number of employees must have been employed differs among the laws.
Courts may add together the numbers of employees from two separate companies, where the court determines that the companies are not truly separate, or where the court finds a “joint employment relationship.” Courts may also add people who you claim are independent contractors, if they are not truly independent contractors.
Eliminate the guesswork. As your business expands and contracts, keep track of the number of employees. If you are close to a threshold “magic number,” ask for help with compliance – before you need a magician.
The West Palm Beach law firm of Bruce Loren & Associates specializes in the representation of businesses and management in the construction industry. Cara F. Barrick, Esq. focuses her practice on employment issues that are unique to the construction industry.

Bruce E. Loren & Associates2000 Palm Beach Lakes Blvd., Suite 501West Palm Beach, FL 33409Telephone: 561-615-5701Fax: 561-615-5708Web: www.lorenlawfirm.comClick Here for Directions

West Palm Beach Contractors Plead Guilty to Hiring Illegal Workers, Tax Fraud

The U.S. Attorney for the Southern District of Florida issued the following news release:
Wifredo A. Ferrer, United States Attorney for the Southern District of Florida, and Daniel W. Auer, Special Agent in Charge, Internal Revenue Service, Criminal Investigation, announced today that John M. David and Juan A. Gonzalez have pled guilty to conspiracy charges related to their participation in a scheme to employ illegal aliens and thereby avoid the payment of employment taxes and workers' compensation premiums for these workers.
The charges involve Sun Deck Concrete, Inc. ("Sun Deck"), a Florida corporation located in Palm Beach County, which provides concrete services to residential and commercial contractors. John M. David is the President of Sun Deck and Juan A. Gonzalez was a supervisor at the business.
According to court documents, in the early 2000s, Sun Deck's business began to grow and the company needed to hire additional laborers. To meet this need and to remain profitable, Sun Deck turned to undocumented workers, many of whom were Honduran and Mexican nationals who were living in the United States illegally. In order to conceal the fact that Sun Deck was hiring and paying illegal aliens, John David and Juan A. Gonzalez devised a scheme to pay these workers through a series of shell companies.

Continued...
www.forconstructionpros.com/online/article.jsp?siteSection=42&id=16600