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  • Question regarding pay Texas

    Here is the situation:

    Employee hired as a "range officer". Rate of pay pay $10.00 hour ~ but paid biweekly same amount no matter the hours worked. Most of the work is manual in nature. Overtime was not paid over 40 hours in one week, but time over 40 hrs was to be taken as comp time in lieu of overtime....but only as straight time.

    After approximately year and a half of working, employee is given a fully furnished, all utilities paid house as compensation for more than 40 hours per week. Should taxes be paid by both parties on this income?

    If employee is laid off and still has overtime that has not been compensated, can both parties legally agree to allow "rent" to continue until OT is paid in full.....and avoid paying taxes?

    Are "security" persons who live on-site legally allowed to receive lodging and not pay taxes?
    Last edited by txnlegacy2011; 05-22-2011, 03:59 PM. Reason: space bar issue

  • #2
    You have a number of unrelated issues here.
    - If we are talking the federal FLSA law only, then under that law, all employees are subject to minimum wage and overtime unless the employer can prove that an actual exception exists. Such exceptions are based on actual job duties and sometimes the industry. You have not given enough of the right type of information to give a hard "yes/no" on this, but "manual labor" sounds like non-exempt (subject to MW/OT). FLSA requires payment of MW/OT in a "timely" manner, but generally leaves just what "timely" means to the state.
    - You have raised the issue of employer provided housing. If we are talking FLSA only, then there is a chance that "facilities" (which could include housing) can be counted to wards MW/OT requirements. Notice I said "chance". This is an historically abused area, and in response, DOL has rules in this area. Lots of lots of rules.
    http://ecfr.gpoaccess.gov/cgi/t/text...1.1.20&idno=29
    - You also mentioned taxes in context of housing. We are no longer talking FLSA at all, but rather a very different law called IRC. Run by the IRS. Anything of value given the employee as a result of the employment relationship is generally fully taxable wages. This would include housing. There are some exceptions, but these are very narrowly worded exceptions. Again, IRS feels there has been great abuse in this area by employers in the past, so this exception is very tightly managed by IRS. Your stating that this housing is given after 1.5 years of employment would make IRS very skeptical that it is non-taxable.
    from IRS Publication 15B
    You can exclude the value of lodging you furnish to an employee from the employee's wages if it meets the following tests.
    "1) It is furnished on your business premises.
    "2) It is furnished for your convenience.
    "3) The employee must accept it as a condition of employment.
    "
    Traditional examples would be fire men/women in a firehouse or oil workers living on a off shore oil rig. Maybe someone living in a lighthouse. The "housing" is not supposed to a favor, it is supposed to something forced on the employee because of the job requirements. If IRS cannot see how the employee is being forced to use the housing, then it is taxable compensation.
    Last edited by DAW; 05-22-2011, 05:22 PM.
    "Reality is that which, when you stop believing in it, doesn't go away".
    Philip K. **** (1928-1982)

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    • #3
      [QUOTE=DAW;1162737] You have not given enough of the right type of information to give a hard "yes/no" on this, but "manual labor" sounds like non-exempt (subject to MW/OT). Work involves loading, moving, setting trap machines, lawn work, maintenance to facility, some sales in proshop.

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      • #4
        Sounds non-exempt. Now I am assuming (absent anything to the contrary being said) that we are talking about a private sector employer in the U.S. If this is a "seaonal" employer, then that would be a possible exception.
        "Reality is that which, when you stop believing in it, doesn't go away".
        Philip K. **** (1928-1982)

        Comment


        • #5
          Originally posted by DAW View Post
          Sounds non-exempt. Now I am assuming (absent anything to the contrary being said) that we are talking about a private sector employer in the U.S. If this is a "seaonal" employer, then that would be a possible exception.
          yes, private sector employer. not seasonal.

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          • #6
            Tthis employee has been laid off.

            He had a backlog of overtime hours.

            My conversation with him was employer is going to compensate him by allowing him to continue living onsite for 34 months.

            Can this employee be subpoened in my DOL case (re unpaid OT)?

            Comment


            • #7
              I am uncomfortable with the use of the word "subpoened". If you are talking about a real world solution that might actual happen, you would file a wage claim with TX-TWC for unpaid overtime. There would be a hearing. You and the employer get to tell your stories. TX-TWC listens to both sides. Could TX-TWC issue a subpoena? Sure. Will they? Do not hold your breath. It would be extremely unlikely that they would see the need. You are maybe over thinking this. Maybe seen too many Law & Order re-runs. Wage claims are handled through an administrative hearing, not a court of law. My last four employers have been through hundreds of these things (on the employer side of things) and we never once received a subpoena on a wage claim.
              "Reality is that which, when you stop believing in it, doesn't go away".
              Philip K. **** (1928-1982)

              Comment


              • #8
                Originally posted by DAW View Post
                I am uncomfortable with the use of the word "subpoened". If you are talking about a real world solution that might actual happen, you would file a wage claim with TX-TWC for unpaid overtime. There would be a hearing. You and the employer get to tell your stories. TX-TWC listens to both sides. Could TX-TWC issue a subpoena? Sure. Will they? Do not hold your breath. It would be extremely unlikely that they would see the need. You are maybe over thinking this. Maybe seen too many Law & Order re-runs. Wage claims are handled through an administrative hearing, not a court of law. My last four employers have been through hundreds of these things (on the employer side of things) and we never once received a subpoena on a wage claim.
                Ok, You make me smile.

                As aquick recap: I have filed a payday claim with TWC. In November TWC issued a PWDO in my favor, employer appealed. Appeal in January, continued in April, TWC again issued an order in my favor. Now waiting results of employer appeal to 3 person Commission. TX payday law only covers 6 mths of pay. I worked for employer close to 5 yrs. I have filed a claim/suit? in Federal court for the remaining overtime due me. that is why I was asking about subpoenas.

                would love to know which law and order episodes cover labor law, lol!

                oh & TWC did sunpoena my employers tax returns although not at my request

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                • #9
                  I've seen a couple of L&O episodes that touched on employment law, and one where most of Jack's case hinged on a point of employment law.

                  They got it wrong, btw. At least, they got it wrong for NY.
                  The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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                  • #10
                    Originally posted by cbg View Post
                    , and one where most of Jack's case hinged on a point of employment law.
                    Who is Jack?

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                    • #11
                      Jack McCoy, the prosecutor on L&O.
                      The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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