April 10, 2015
Workers’ compensation coverage is initially priced on an estimated basis. The insured estimates payrolls (and sometimes class codes) at the beginning of the policy period for the upcoming year on which the insurance carrier charges a premium using the prescribed rates. After the close of the policy year, the insurance carrier desires to firm up the numbers to confirm collection of the actual premium earned for the actual exposure insured. This “firming-up” is known as the premium audit.
Premium audits are addressed by Part Five, paragraph G., of NCCI’s Workers’ Compensation and Employers’ Liability Insurance Policy. The form reads as follows:
G. Audit: You will let us examine and audit all your records that relate to this policy. These records include ledgers, journals, registers, vouchers, contracts, tax reports, payroll and disbursement records, and programs for storing and retrieving data. We may conduct the audits during regular business hours during the policy period and within three years after the policy period ends. Information developed by audit will be used to determine final premium. Insurance rate service organizations have the same rights we have under this provision.
Premium, with rare exception, is based on payroll, also known as “remuneration.” Below are the common remuneration inclusions and exclusions:
- Commissions – If on draw, and draw is greater than commissions earned — use the entire amount of the draw;
- Bonuses, unless awarded for individual invention or discovery;
- Overtime – One-third of amount is subtracted from the total amount (one-half if it is double-time pay);
- Pay for holidays, vacations, or periods of sickness;
- Pay for time not worked (i.e., paid for an 8-hour day when only 7 hours worked);
- Pay for travel time to or from work or specific job site;
- Employer payments of amounts otherwise required by law (i.e., Statutory insurance, Social Security, etc.);
- Contributions to a savings plan or vacation fund required by a union contract;
- IRS Qualified Salary Reduction Plan (i.e. 401K) (refers to the employee’s contribution and any qualified agreement between the employer and the employee to pay into a retirement plan in lieu of direct wages);
- Employee Savings Plans – Only the amount given by the employee, not the employer’s match, if any;
- Contributions to an IRA made by the employee;
- Payment on any basis other than time worked such as piecework, incentive plans or profit sharing plans;
- Payment or allowance for tools;
- Value of housing/lodging;
- Value of meals; and
- Substitutes for money (merchandise certificates, store credit, etc.).
- Tips and other gratuities;
- Payments by employer to Group Insurance or Pension Plans (employer matching);
- Special rewards for individual invention or discovery;
- Severance pay;
- Pay for those on active military duty;
- Employee discounts;
- Expense reimbursements;
- Money for meals for overtime work;
- Work uniform allowance;
- Sick pay paid by a third party; and
- Employer-provided perks (company autos, incentive vacations, memberships).
Special Payroll Considerations – Sole Proprietors, Partners, LLC Members and Executive Officers
Actual remuneration for each employee is used in the calculation of the final workers’ compensation premium with just a few common exceptions. Sole proprietors, partners, LLC members and executive officers are treated differently than regular employees.
Sole proprietors and partners in states that allow these persons to choose to be subject to the workers’ compensation law and thus covered by the policy are generally assigned a payroll regardless of his or her actual gross income. This amount is adjusted annually to account for inflation and other cost of living factors. Each state allowing these individuals to “opt in” assigns its own payroll limit (the amount not the same throughout the country).
Executive officers are generally subject to an upper and lower weekly payroll limit rather than a set annual payroll. If, for instance, the minimum weekly payroll assignable to an executive officer is $331 per week ($17,212 per year) with a maximum weekly payroll of $1,300 per week ($67,600 per year); an executive officer paid $300,000 per year will appear on the audit at $67,600 per year. Remember, not all officers are executive officers. Executive officers are generally limited to the president or CEO, the CFO and certain levels of vice presidents. The delineation is a function of the articles of incorporation and can vary from entity to entity.
Members and managers of an LLC are, once again, subject to state laws. Some states treat these individuals as sole proprietors/partners while others view them as executive officers. The subject law should be reviewed to confirm how these individuals are classified and thus how payrolls are assigned based on the descriptions above. Likewise, proper assignment of the founders/organizers of a professional association (PA) is subject to individual state statutes.
Three operational and actuarial reasons for such payroll limitations are:
- Getting paid more does not increase the likelihood that an injury will occur. A plumbing company executive officer actually engaged in plumbing work and earning $150,000 per year is no more likely to get hurt than the $15 per hour “plumber’s helper.” In fact, he is probably less likely to get hurt due to experience and personal interest. The amount of pay does not increase the chance of injury;
- Medical costs, theoretically, don’t fluctuate based on the individual’s income. A broken leg costs the same to set for the owner and the hourly employee;
- Indemnity payments are limited to a minimum and maximum in each state. Each state sets the minimum and maximum weekly indemnity benefits. If the maximum that an injured executive or employee can receive in any given year is $75,000 (just for example sake), it is not reasonable to expect the insured to pay a premium based on a gross income of $200,000. This operational rule is combined with the previous two to limit the amount of payroll assignable to these special classes of people.
Continued in Next Post
Part II of this series-within-a-series focuses on and explains the:
- Governing Classification and Single Enterprise Rule; and
- ABCs of Premium Audits.
Workers’ Compensation Series
This is the ninth in a series of articles on workers’ compensation. The series is taken from the book, “The Insurance Professionals’ Practical Guide to Workers’ Compensation: From History through Audit.” The articles in this series are:
- Workers’ Compensation History: The Great Tradeoff
- Benefits Provided Under Workers’ Compensation Laws
- Second Injury Funds: Are They Still Necessary or Just a Drain On the System?
- Employees Exempt from Workers’ Compensation
- Nonemployee ‘Employees:’ The Borrowed Servant Doctrine
- Work Comp for PEOs and Their Client/ Employers
- Combinability of Insureds
- Audit Rules and Guidelines
- Audit Problems Leading to Additional Premiums
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