Exceptions to the Governing Classification Rules

As discussed previously, the governing classification to which a particular employer's payroll is assigned is intended to represent the analogous exposure of the entire operation. Each individual job or duty is not split out and assigned a specific code…except in specific circumstances. These four circumstantial exceptions to the governing classification rule are discussed in the following paragraphs:
• The "Standard Exception" classifications;
• The "Interchange of Labor" rules;
• The "General Exclusion" classes; and
• Employers eligible for classification under the "Multiple Enterprise" rule.

"Standard Exception" Classifications

Some duties/activities are considered so common to most business and such duties may be so far outside the operational activities of the business that employees engaged in certain jobs are considered exceptions to the governing classification rules. Payroll for these "standard exception" classes of employees is subtracted from the governing classification and assigned to the applicable standard exception code and rated separately from the governing class. The standard exception classes include:
• Clerical Employees- Class Code 8810;
• Clerical Telecommuter - Class Code 8871;
• Drafting Employees - Class Code 8810;
• Salespersons - Class Code 8742; and
• Drivers - Class Code 7380.

For a particular employee or group of employees to qualify for assignment into one of the standard exception classifications, he/she must be physically separated from the operative hazards of the business by means of walls, floors, partitions or counters. Such separation requirement does not negate the assignment of an employee to a standard exception class if he is only entering the area of operation to conduct duties consistent with his class code; such as a clerical employee entering the operations area to deliver paychecks.

Standard exception classifications are not necessarily limited to these five class codes; some states utilize state-specific class codes that are also eligible for assignment as a standard exception. For example, Texas allows certain employees to be assigned to "Executive Officers NOC" (class code 8809) and the payroll for these employees is pulled out of the governing classification and rated as a standard exception.

Employees falling into a standard exception classification may not always be eligible for "standard exception" separation. Attention must be paid to the governing classification description; at times, the governing classification may state "…&…" or "…including…." If such wording appears, the payroll for the standard exception employee is included in the governing classification. The reason for such inclusion, the analogy of that particular operation requires the presence of the standard exception employees to accomplish the goals of such business. A few examples of this include (not an exhaustive list):
• Farm: Nursery Employees & Drivers (Class Code 0005);
• Chemical manufacturing NOC - all operations & Drivers (Class Code 4829);
• Carpet, rug or upholstery cleaning & Drivers (Class Code 2585);
• Physicians & Clerical (Class Code 8832);
• Photographer - All employees & Clerical, Salespersons and Drivers (Class Code 4361); and
• School: Professional Employees & Clerical (Class Code 8868).

Interchange of Labor

A second exception to the governing classification rule is the "interchange of labor" rule. The applicability of the interchange of labor rule varies by state; some states only allow its use in the construction, erection or stevedoring classes of business while other states permit the interchange of labor rule to apply to any type of business operation.

Interchange of labor rules allow a single employee's payroll to be split between or among several class codes that may be present within the operations. The advantage to the employer (premium payer) of such allowance is an ultimately lower premium. Without the interchange of labor rule, the employee's entire payroll would be assigned to the governing (likely highest rate) classification. With the interchange of labor rule in effect, the employer is charged based on the employee's actual exposure to injury.

For instance, an employee in the construction industry who does framing work (5645) and hardwood floor installation (5437) can see his payroll divided between these different operations and realize a reduction in premium provided the following specific provisions are met:
• All classifications used for an employee are appropriate to the job performed;
• Payroll records exist that allocate the employee's wages between/among the different classes. This requires an actual, dollar amount payroll split, a percentage of payroll is not allowed; and
• The division of payroll is not available with any of the standard exception classifications (with the possible exception of the driver code).

Continuing the above example using assigned risk rates of $25 for code 5645 and $14 for code 5437, an employee earning an annual payroll of $30,000 will cost the employer $7,500 if there is no interchange of labor. If, however, all the interchange of labor guidelines are met, and the employee's payroll is split as follows: $20,000 for framing and $10,000 for hardwood floor installation; the employee will only cost $6,400 in workers' compensation premium (ignoring expense constants, modification factors and debits or credits).

The interchange of labor rule is great for the employer due to the premium savings and is fair for the insurance carrier because exposures differ based on activity. When the employee is on scaffolding he is more like to suffer a severe injury than when installing flooring.

Employers and their agents must understand and take advantage of the interchange of labor rules allowed in each subject state. Large payrolls can greatly benefit from such splits thus agents should encourage detailed payroll records be kept and the audits should be checked closely.

General Exclusion Classifications

Some operational activities do not fit into the analogous assignment of the governing classification due to the unexpected existence of such an operation as part of a particular business. It is not reasonable to expect the hardware store code (8010) to pick up the exposure created by an on-site sawmill operation (2710) for example.

Such operations are known as "general exclusion" classes. General exclusion classes are listed separately on the workers' compensation policy and a separate rate (based on the class code) is charged for the employees within these classes of operations.

General exclusion classes are the opposite of "standard exception" classes. General exclusion classes are completely unexpected and not considered part of the analogy of the governing classification of an operation requiring separation to allow the insurer to garner the, usually, higher premium for the increased exposure. Standard exceptions represent operations common to most business and are of such minimal hazard that the insured should not be punished by having the payroll for these classes included in the governing classification, but should rather enjoy a lower premium for the reduced exposure.

Operations and activities falling within the general exclusion classification are:
• Employees working in aircraft operations;
• Employees performing new construction or alterations;
• Stevedoring employees;
• Sawmill operation employees; and
• Employees working in an employer-owned daycare.

Multiple Enterprise Rule

The single enterprise rule introduced in the previous article requires that all activities usual and customary to a particular operation be assigned to one "governing" class code (with the exceptions described above). However, a particular entity may conduct additional operations not usual or customary to such an enterprise; such disparate activities may allow the insured to qualify for the separation of payroll into multiple classifications under the "multiple enterprise rule."

A secondary operation producing a basic premium equal to or higher than the governing class code (the code generating the highest payroll) premium automatically qualifies for separation under the multiple enterprise rule with the only requirement being segregation of payrolls.

If, however, the basic premium generated by the secondary operation is less than the governing class code basic premium, four tests must be satisfied before the insured can make use of the multiple enterprise rule. These are:
1. The operation to be separately classed is not commonly found within the operation of the subject insured's business;
2. The operations could each exist as a separate entity;
3. Financial records are kept separately for each operation; and
4. The operations are physically separated by means of a partition, wall or placement in a separate building.

Such separation of payrolls may benefit the insured employer by a reduction in premium if the secondary enterprises carry a lower rate per $100 of payroll. Additionally, employers that qualify for separation of payrolls under the multiple enterprise rule may also be able to benefit from the application of the interchange of labor rule presented above (based on the state).

ABC's of Premium Audits

There are specific guidelines that agents and the employer should apply to every audit. These are the "ABC's" of premium audits.

"A": Always be there. A representative from the company familiar with the financial records and the operations of the company should be present at every audit. The auditor will likely have questions and unless someone is available to answer these questions and explain the financial documents, the auditor is likely to make some assumptions and potentially some costly mistakes. This duty should not be delegated to any member of the staff not intimately familiar with the business.

"B": Be prepared. The auditor will need all the necessary financial records to conduct the audit and will likely ask for a tour of the facility. Prepare a place for the auditor to work and help them complete their job as quickly as possible. Some data that will need to be ready includes:
Payroll records: Payroll journal and summary; 941's; state unemployment reports; an explanation and break out of overtime payments; and the general ledger.
Employee records: Include a detailed description of job duties; the number of employees; employee hire and fire dates; and class code splits if applicable.
Cash disbursements: Cost of and payments to subcontractors; cost of materials; and the cost of any casual labor hired.
Certificates of Insurance: Make sure to supply current certificates of insurance covering the entire period of the audit or the entire period of time the contractor has worked for the insured. If the sub's policy renews in the middle of the audit period, a new certificate should be requested covering the remainder of the insured's policy period.
OCIP projects: If the insured has been a part of any wrap-up, the auditor needs this information in order to remove the payroll from the calculation.

"C": Copy of the auditor's work papers. Don't let the auditor leave without getting a copy of the audit work papers. This will allow the insured and their agent to review the audit and confirm that there are no errors BEFORE the audit is processed and billed (fixing it "after-the-fact" is more difficult).

"D": Don't volunteer more information than asked. The auditor will ask questions, this is expected. Insureds should be advised to only answer the questions ask, do not lead the auditor down a path that may be detrimental to the insured.

"E": Exceptions to the single entity rule. The exceptions listed above should be capitalized on by the insured. Audits should, at the very minimum, contain at least one standard exception code. If the insured is eligible for any of the other payroll splits described above, those codes should also be included.

Knowing the rules and exceptions, giving the auditor everything they need to complete the audit quickly and following the above rules will increase the chances of a favorable audit.

The next article will be the long-awaited workers' compensation and employers' liability coverage checklist.

All terms in this glossary and the glossary itself is taken from the book "The Insurance Professional's Practical Guide to Workers' Compensation: From History through Audit." The book is available now to add to your insurance library.