Tag Archives: wage and hour division

EEOC Suit Against CVS Raises Concerns

The Equal Employment Opportunity Commission has challenged the legality of provisions commonly included in severance, separation or other settlements with employees being terminated. These provisions state that settlement benefits are to be paid only if the employee doesn’t file charges or otherwise communicate with the EEOC.

Employers planning to use such provisions should note a lawsuit filed by the EEOC against the nation’s largest integrated provider of prescriptions and health-related services, CVS Pharmacy.

In Equal Employment Opportunity Commission v. CVS Pharmacy, Inc., CA no. 14-cv-863 (N.D. Ill., 2014), the EEOC charges that CVS unlawfully violated employees’ right to communicate with the EEOC and file discrimination charges. The EEOC says CVS committed the violation through an overly broad severance agreement that included five pages of small print.

The lawsuit claims CVS violated Section 707 of Title VII of the Civil Rights Act of 1964, which prohibits employer conduct that constitutes resistance to the rights protected by Title VII.

The lawsuit also is notable because it is not filed in response to an investigation of a discrimination charge. According to the EEOC, Section 707 permits the agency to seek immediate relief without the same pre-suit administrative process that is required under Section 706 of Title VII, and does not require that the agency’s suit arise from a discrimination charge.

“Charges and communication with employees play a critical role in the EEOC’s enforcement process because they inform the agency of employer practices that might violate the law,” according to the EEOC attorney leading the litigation, John C. Hendrickson. “For this reason, the right to communicate with the EEOC is a right that is protected by federal law. When an employer attempts to limit that communication, the employer effectively is attempting to buy employee silence about potential violations of the law. Put simply, that is a deal that employers cannot lawfully make.”

EEOC District Director Jack Rowe added, “The agency’s most recent strategic enforcement plan identified ‘preserving access to the legal system’ as one of the EEOC’s six strategic enforcement priorities. That was no accident. The importance of employees’ ability to participate in the agency’s process, free from fear of adverse consequences, cannot be overstated. It is always difficult for an employee to report employer discrimination to federal law enforcement officials. Anything that makes that communication harder increases the risk that discrimination will go unremedied.”

The litigation showcases the need for employers to use caution when attempting to prevent employees from reporting to or cooperating with regulators investigating suspected discrimination or other legal violations. The EEOC’s challenge in the CVS litigation is not unique. Challenges have arisen under a wide range of federal and state laws.

The Labor Department Wage and Hour Division has rules that say employers will receive no shield from investigations by the agency or from enforcement of wage and hour laws on settlements with terminated employees that didn’t involve the division. The Justice Department and other government enforcement agencies often view confidentiality provisions as prohibited obstruction or retaliation. In addition, government investigators often view the existence of gag rules as evidence that an organization does not maintain the required culture of compliance.

The CVS litigation also cautions businesses against taking for granted the appropriateness of their current agreements with employees. The EEOC challenge is just one of several developments that can affect the design and use of severance, separation and other settlement agreements with employees intended to resolve employment discrimination claims. While many employers may assume they can safely use agreements used in connection with previous terminations, the CVS litigation highlights the potential advisability of seeking the advice of qualified legal counsel, even if the employer benefited from the advice of legal counsel in drafting the previous agreement.

Firms Must Clean Up Worker Classifications

Businesses should heed the expansion of the Internal Revenue Service voluntary classification program (VCS) as yet another warning to clean up their worker classification practices and defenses for all workers performing services for the business in any non-employee capacity.

When businesses treat workers as nonemployees, yet they render services in such a way that they likely qualify as a common law employees, the businesses run the risk of overlooking or underestimating the costs and liabilities of employing those workers.

The U.S. Department of Labor’s Wage and Hour Division has an ever-lengthening record of businesses subjected to expensive backpay and penalty awards because the businesses failed to pay minimum wage or overtime to workers determined to qualify as common law employees entitled to minimum wage and overtime under the Fair Labor Standards Act.

Originally announced on Sept. 22, 2011, the VCS program as modified by Announcement 2012-45 continues to offer businesses a carrot to reclassify as employees workers who had been misclassified for payroll tax purposes as independent contractors, leased employees or other nonemployee workers. That carrot came with a stick: the IRS’ promise to zealously impose penalties and interest against employers caught misclassifying workers. And the IRS is only one of many agencies on the alert for worker misclassification exposures — worker misclassification also affects wage and hour, safety, immigration, worker’s compensation, employee benefits, negligence and a host of other obligations. Private plaintiffs are also pursuing businesses for misclassification.

All of these exposures carry potentially costly compensation, interest and civil and in some cases even criminal penalties for the businesses and their leaders. Consequently, businesses should act prudently and promptly to address all of these risks and manage their misclassification exposures. Because most businesses uniformly classify workers as either employees or nonemployees for most purposes, business leaders must understand the full scope of their businesses’ misclassification exposures.

VCS Program offers limited relief

Worker misclassification affects a broad range of tax and non-tax legal obligations and risks well beyond income tax withholding, payroll and other employment tax liability and reporting and disclosure. A worker classification challenge or necessity determination should prompt a business to address the worker reclassification and attendant risks in other areas.

Typically, in addition to treating a worker as a nonemployee for tax purposes, a business also will treat the worker as a nonemployee for immigration law eligibility to work, wage and hour, employment discrimination, employee benefits, fringe benefits, workers’ compensation, workplace safety, tort liability and insurance and other purposes.

Healthcare reform increases risks

Businesses can look forward to these risks rising when the “pay or play” employer-shared responsibility, health plan non-discrimination, default enrollment and other new rules take effect under the Patient Protection & Affordable Care Act (ACA). Given these new ACA requirements and the government’s need to get as many workers covered as employees to make them work, the IRS and other agencies are expanding staffing and stepping up enforcement against businesses that misclassify workers. Businesses must understand how workers are counted and classified for purposes of ACA and other federal health plan mandates.

ACA and other federal health plan rules decide what rules apply to which businesses or health plans based on such factors as the number of employees a business is considered to employ, their hours worked and their seasonal or other status. The ACA and other rules vary in the relevant number of employees that trigger applicability of the rule and how businesses must count workers to decide when a particular rule applies. Consequently, trying to predict the employer shared responsibility payment, if any, under Internal Revenue Code (Code) Section 4980H or trying to model the cost of any other federal health benefit mandates requires each business know who counts and how to classify workers for each of these rules. Most of these rules start with a “common law” definition of employee then apply rules to add or ignore various workers. Because most federal health plan rules also take into account ”commonly controlled” and “affiliated” businesses’ employees, businesses also may need to know their information.

For instance, when a business along with all commonly controlled or affiliated employers employs a combined workforce of 50 or more “full-time” and “full-time equivalent employees” but does not offer “affordable,” “minimum essential coverage” to every full-time employee and his dependents under a legally compliant health plan, the business generally should expect to pay a shared responsibility payment for each month that any “full-time” employee receives a tax subsidy or credit for enrolling in one of ACA’s healthcare exchanges.

If the business intends to continue to offer health coverage, it similarly will need to accurately understand which workers count as its employees for purposes of determining who gets coverage and the consequences to the business for those workers that qualify as full-time, common law employees not offered coverage.

In either case, ACA uses the common law employee test as the basis for classification, and the already significant legal and financial consequences for misclassifying workers will rise considerably when ACA gets fully implemented.

Consider relief in the full context

As part of a broad effort, the IRS is offering certain qualifying businesses an opportunity to resolve payroll liabilities arising from past worker misclassifications. The VCS Program settlement opportunity emerged in 2011.Touted by the IRS as providing “greater certainty for employers, workers and the government,” the VCS Program offers eligible businesses the option to pay just more than 1% of the wages paid to the reclassified workers for the past year. The businesses also must meet other criteria. The IRS promises not to conduct a payroll tax audit or assess interest or penalties against the business for unpaid payroll taxes for the previously misclassified workers.

Participation was low, partly because not all businesses with misclassified workers qualified to use the program. The original criteria to enter the VCS Program required that a business:

Be treating the workers as nonemployees;
Consistently have treated the workers as nonemployees;
Have filed all required Forms 1099 for amounts paid to the workers;
Not currently be under IRS audit;
Not be under audit by the Department of Labor or a state agency on the classification of these workers or contesting the classification of the workers in court; and
Agree to extend the statute of limitations on their payroll tax liabilities from three to six years.
After only about 1,000 employers used the VCS Program, the IRS modified it so that employers under IRS audit, other than an employment tax audit, now qualify. The IRS also eliminated the requirement that employers agree to extend their statute of limitations on payroll tax liability.

Many employers may still view use of the VCS Program as too risky because of uncertainties about the proper classification of certain workers in light of the highly specific nature of the determination. Employers may also have concerns about the effect that use of the VCS Program might have on non-tax misclassification exposures for workers who would be reclassified under the VCS Program.


One of the biggest challenges to getting businesses to change their worker classifications is getting the businesses to accept the notion that long-standing worker classification practices in fact might not be defensible. Although existing precedent and regulatory guidance makes clear that certain long-standing worker classification practices of many businesses would not hold up, business leaders understandably often discount the risk because these classifications historically have faced little or no challenge. Even when business leaders recognize that changing enforcement patterns merit reconsideration, they may be reluctant to reclassify the workers.

The common law employment test often relies on a subjective, highly fact-specific analysis of the circumstances of the worker. The business, rather than the IRS or other agency, generally bears the burden of proving the correctness of its classification of a worker. So, a business must ensure that its decisions can withstand scrutiny under all applicable tests and must retain evidence. Businesses also should exercise special care to avoid relying on overly optimistic assessments of the facts and circumstances.

When the factual evidence creates significant questions, an employing business generally should consider reclassifying or restructuring the position. Often, it also may be desirable to incorporate certain contractual, compensation and other safeguards into the worker relationship, both to support the nonemployee characterization and to minimize future challenges and exposures.

Importance of attorney-client privilege for risk management

Because of the broad exposures arising from misclassification, business leaders generally should work to ensure that their risk analysis and decision-making discussion is positioned for protection under attorney-client privilege and attorney work product privilege.

The interwoven nature of the tax and non-tax risks merits particular awareness by business leaders of the need to use care in deciding the outside advisers that will help in the evaluation of the risks and structuring of solutions. While appropriately structured involvement by accountants and other non-legal consultants can be a valuable tool, the blended nature of the misclassification exposures means that the evidentiary privileges that accountants often assert to help shield their tax-related discussions from discovery are likely to provide inadequate protection. For this reason, business leaders are urged to require that any audits and other activities by these non-legal consultants to evaluate or mitigate exposures be conducted whenever possible within attorney-client privilege. Accordingly, while businesses definitely should use appropriate tax advisers, they will want to first engage counsel and coordinate non-attorney advisers’ activities within the protection of attorney-client privilege