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Important to consider if you work as an IC on VA accounts and - file a complaint with the DOL
Posted: Aug 09, 2013
There are several threads on the Company Board about this right now. The McNamara-O'Hara Service Contract Act provides that if you work for an MTSO and you are working on Veterans Administration (VA) or other federal contracts, you must be classified as an employee and be paid a prevailing hourly wage with some specific benefits.
You can file a complaint anonymously with the Department of Labor in the state in which your MTSO is located. I have spoken to several people at the DOL in several states about this. I was told that they would investigate your claim by looking only at the specific accounts on which you worked. This means that they do not audit every VA contract your MTSO has. Although you do remain technically anonymous, this could potentially identify you to your employer because only the accounts on which you work will be audited. If, however, every MT who works on VA contract accounts for your MTSO also files complaints, your employer would not be able to deduce exactly who filed the claim. Of course if you no longer work for the MTSO, this would not be an issue for you. While there is a law in place to protect employees who file these kinds of complaints, if you were to be terminated for taking such action, it is very difficult to successfully seek redress. I was directly advised of this sad fact by someone at the DOL.
This is not to discourage anyone from filing complaints if they are due back wages, etc., but to ENCOURAGE ALL WHO ARE DUE BACK WAGES TO FILE COMPLAINTS! An MTSO is not going to terminate all its MTs at once, especially since the DOL will make sure that they reclassify their MTs as employees and pay them the prevailing hourly wage for work on those VA accounts. They're going to have to pay SOMEONE that money--it might as well be the people who have been working on the accounts all along.
I realize this can be difficult because we all work remotely and don't really know our fellow MTs who work at the same MTSO. This is exactly what the MTSOs are counting on. If anyone has suggestions about how to safely get in touch with other MTs at our respective MTSOs in order to move as a united front towards recouping money we are owed, please share!
Response to the person who emailed me - OP
[ In Reply To ..]Yes, you can absolutely file a complaint with the Department of Labor if you were not paid the prevailing hourly wage, even if you were classified as an SE. (To find the prevailing hourly wage for a specific geographic location, go to http://www.wdol.gov/sca.aspx .) I do not know if there is a statute of limitations, but I'm sure someone at the DOL can let you know about that and what information and documentation you need in order to file a complaint.
clarification sm - arnold
[ In Reply To ..]So are you saying if an MT works on VA accounts they should be paid by the hour rather than by production? Or if paid on production earnings per hour should equal the prevailing wage determination?
Yes, that is correct, arnold. - nm
[ In Reply To ..]x
ICs are soon going to be a thing of the past--not just VA but OCR - anon
[ In Reply To ..]http://www.gpo.gov/fdsys/pkg/FR-2013-01-25/pdf/2013-01073.pdf
Do a Google search for HIPAA final rule. Effective Sept 2013, any subcontractor (MTSO IC) with access to PHI (protected health information) must have a signed BAA (Business Associate Agreement) with a Covered Entity (hospital, clinic, surgery center). Those not in compliance will be prosecuted by the OCR (Office of Civil Rights) for noncompliance with steep penalties.
Do you think medical facilities will be willing to sign BAAs with all the MTSOs ICs? NOT! MTSOs will be forced to reclassify their ICs as employees, pay payroll taxes and benefits, pay minimum wage and overtime.
Pretty serious and all in effect Sep 24, 2013.
Correct per final HIPAA rule effective 9/24/13 - anon
[ In Reply To ..]Clinical Health Act (HITECH Act).
Expanded Definition of Business Associate
Under the final rule, the definition of business associate includes the following categories of organizations:
1.Subcontractors
The final rule expanded the definition of business associate to include all subcontractors of business associates that create, receive, maintain or transmit protected health information (PHI) on behalf of business associates. The reach of this designation will apply to subcontractors irrespective of how far downstream the subcontractor is, contractually, from the covered entity. Each subcontractor, as a business associate under the new definition, will be directly liable for its own compliance with the provisions of the privacy and security rules applicable to business associates.
I wonder how this affects offshore companies who subcontract to MTSOs like Nuance, MModal, SGS, IMedx, Diskriter, and the list goes on???
Naive?? - NuAnon
[ In Reply To ..]Doesn't Nuance and MM already have their own employees offshore in India/Phillipines? This wouldn't really play into them if that's the case correct?
They cannot use employees who... - sm
[ In Reply To ..]On a VA accunt, the company cannot be managed or use employees who are outside the United States.
This is a contractual matter between the federal government and the MTSO. If you feel that a VA contract has been violated, you could report it anonymously to the VA Inspector General. You can google the contract terms, since these are not secret. They go out on bid and those bids are on the internet.
Still Naive.... - NuAnon
[ In Reply To ..]So Nuance cannot use the QCs/QAs and MTs that they have just sent all our (Webmedx/Transcend) work to?
Why would they spend so much time, effort, and money to send everthing over there, hire and train all those people in India, just to bring it all back in September? Doesn't make a whole lot of sense to me, hence signed still naive... lol
Thank you. I was totally unaware of this major event. - i come here everyday!
[ In Reply To ..]The other alternative may be that we are let go. I cannot believe this is the first I have heard of this. There must be fewer ICs than I thought. I suddenly feel out of the loop.
Thank you for sharing this vitally important information.
Or maybe Statutory Employee status would help bridge the gap. - SE
[ In Reply To ..]Which is the best of both worlds, in my opinion.
IRS says MT doesn't meet the definition of statutory employee - MTtoo
[ In Reply To ..]â€Â¢
A driver who distributes beverages (other than milk) or meat, vegetable, fruit, or bakery products; or who picks up and delivers laundry or dry cleaning, if the driver is your agent or is paid on commission.
IRS definition of statutory employee (copied from their website)
--A full-time life insurance sales agent whose principal business activity is selling life insurance or annuity contracts, or both, primarily for one life insurance company.
--An individual who works at home on materials or goods that you supply and that must be returned to you or to a person you name, if you also furnish specifications for the work to be done.
--A full-time traveling or city salesperson who works on your behalf and turns in orders to you from wholesalers, retailers, contractors, or operators of hotels, restaurants, or other similar establishments. The goods sold must be merchandise for resale or supplies for use in the buyer̢۪s business operation. The work performed for you must be the salesperson's principal business activity.
#2 - MT meets that
[ In Reply To ..]A good attorney could argue MT meets the second one easily.
The problem is, so much of this stuff is not as black and white as everyone keeps trying to make it. A good attorney can argue most employment points for MT and win on any given day as a different attorney could use the exact same arguments, different judge and lose.
The IRS gives GUIDELINES which means there is a whole lot of room for interpretation.
Ummm, the second one hits it right on the head for MTs. - what did you get from that one? NM
[ In Reply To ..]why you say no?
MTtoo, did the IRS tell you we don't meet #2? - Where? Because it sounds just like us. nm
[ In Reply To ..]x
Yes, as we don't provide materials or goods. See msg - MTtoo
[ In Reply To ..]Yes, they consider what we do a highly skilled professional job, not making widgets, which is what #2 refers to. Supposedly it only applies to manufacturing by unskilled labor. But, another poster was correct . . . would depend on the attorney and the IRS agent, I'm sure. But that was what I was told.
The bigger issue obviously is the widespread use of ICs by so many MTSOs. That has to change by Sept, or have each and every IC sign a BAA with the hospital or clinic. I can't see that happening as turnover for these MTSOs is pretty rapid. Here today, gone tomorrow kind of thing. So the newly mandated BAA will have to be signed by the MTSO to cover all its employees, not its ICs.
Might want to read that again - sm
[ In Reply To ..]Read #2 again. It is referring to goods and materials supplied bybthe EMPLOYER, not the worker. How else can they be "returned"to the person who supplied them? And do you not think recorded dictation is a "material"?
Thse 3 situations are examples, not definitions. They are not the only situations.
The status of MTs as, in some situations, statutory employees was clarified by the IRS in the early to mid-90s. Right after they nailed MTSOs for misclassifying them as ICs. That is why the big MTSOs at the time moved en mass from IC to SE.
I really got nailed - Peggy
[ In Reply To ..]I worked for MedQuist (gag me with a spoon) in the nineties. They misclassified me and the IRS came after ME. My accountant was able to get it all straightened out ($800 later and nearly having to go to Tax Court). MQ, as usual, was up to no good.
That really doesn't make any sense. - sm
[ In Reply To ..]Why would the IRS come after you? Obviously if you were not classified as an employee you WOULD have been paying your taxes on your own. However, I could understand if you were classified as an employee and erroneously thought MQ was paying your payroll taxes all along, and then the IRS told you you were actually an IC and had to pay back taxes.
Am I confused? Could you please explain, because otherwise it looks like maybe you're just trying to discourage people from filing complaints with the DOL because they should have been classified as employees and are due back wages. In those cases, the person will GET money, not have to pay it out.
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