Author: Rick Bell

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How to Schedule Employees Effectively: 6 Proven Steps

live wage tracker, analytics, schedule employees

Summary

  • Employee scheduling is more than just filling shifts. It’s about balancing profitability with employee experience.  
  • Labor laws govern schedules in some cities and states, which can pose compliance issues for large hourly teams. 
  • Employee scheduling software can streamline shift assignments, but truly efficient systems can also factor in demand and compliance when managers fill shifts.

Creating and managing an employee schedule is a complex process that can take up hours out of a manager’s week.

Yet employee scheduling can have massive impacts on a business, especially for                  organizations with a large hourly workforce and significant labor costs. 

Poor scheduling can lead to overstaffing, which inflates labor expenses, or understaffing, which strains employees and impacts productivity. An unpredictable schedule can also contribute to burnout and high turnover, forcing you to constantly recruit and train new members.  

Many factors go into the scheduling process and creating the most effective schedule, including having the right expertise on your team, communicating with your frontline staff, and using the right employee scheduling software.

Here’s exactly how to schedule employees effectively.

1. Understand the laws that govern schedules in your city or state 

Scheduling employees effectively, at its most basic level, requires compliance with labor laws.

Over the past decade, different cities and states have passed their own predictable scheduling laws regulating shift work, starting with San Francisco in 2013. See if you are in a jurisdiction with predictive scheduling laws here.

Depending on the specific law, employers may have to schedule employees up to two weeks in advance. Further, these laws may levy employer penalties for unexpected employee work schedule changes, regulate “clopening” shifts, and define schedule recordkeeping requirements for business owners. 

These laws address the challenges many hourly workers face, including unpredictable, unstable, and insufficient hours. Certain staff scheduling practices, like on-call scheduling, make it difficult for employees to hold second jobs or plan for other responsibilities in advance.

However, employers may find it difficult to make last-minute scheduling decisions given the perceived lack of flexibility the laws impose on them.

Here’s where employee scheduling software like Workforce.com can help. Beyond tracking employee attendance and reliably scheduling employees in advance, it’s kept up-to-date with legal rules and regulations. Plus, managers can set their own employee scheduling rules.

The software notifies managers if they’re about to break a law or rule when placing people in open shifts, scheduling staff beyond their maximum hours, assigning minor workers for hours they are not allowed to work, or under other conditions for which they would be at risk of non-compliance with the rules.

how to schedule employees, shift work

2. Use labor forecasting to create optimal schedules 

Labor forecasting is a powerful tool in employee scheduling. 

Two main types of data go into these predictions. There’s data on external factors like the time of year, weather, or events happening nearby. Then, there’s data on your specific business’s conditions and operations, such as your historical sales data, booked appointments, busiest times, foot traffic, and employee availability. 

While no prediction is 100 percent certain, the more accurate and relevant data you connect with labor forecasting, the more confident you can be in your forecasts and identifying scheduling needs, reducing your chances of overstaffing, understaffing, and incurring unnecessary overtime. 

Workforce.com’s labor forecasting system factors in all the relevant data, both internal and external, to calculate staffing ratios that will equip managers to create the most productive schedule, ensuring that you have the optimal number of employees in every shift.

Imagine you run a retail business and intend to optimize your staff scheduling throughout the year. With labor forecasting, you can analyze past sales trends and customer traffic to predict busy and slow periods. For instance, if your data shows that holiday shopping spikes in November and December, you can plan ahead and hire seasonal and part-time employees to help with the increased demand. On the other hand, if January tends to be slow, you can scale back part-time hours to control labor costs and avoid overstaffing.

shift ratings, how to schedule employees

3. Match the right employees to the right shifts

Filling open shifts is complicated beyond just legal compliance and predicting business needs. Employees have different preferences and limitations, while managers aim to assign shifts fairly and efficiently. The challenge? Creating a schedule that works for both the business and its people.

Using a combination of scheduling algorithms and employee input for filling schedules can be a good strategy. This allows a business to benefit from advances in technology while also taking real-world human considerations into account.

So, how do you do that exactly?

First, let’s look at the facts. Before assigning shifts, ensure employees meet the necessary qualifications. Does a role require specific certifications? Is there a minimum age requirement? Workforce.com simplifies this by sending managers real-time notifications, helping them assign shifts only to qualified team members.

Next, factor in employee preferences. Employees can submit feedback through Workforce.com’s shift rating and feedback, sharing insights on staffing levels, engagement, and management after each shift. By analyzing this feedback, managers can build schedules that align with business objectives and employee preferences.

Using these insights, you can also make less desirable shifts more appealing, especially if you’re operating 24/7. Late nights, early mornings, and weekend shifts can be more challenging to fill. To encourage coverage, consider offering shift deferential pay for employees who would take on these odd hours.

4. Plan ahead for last-minute scheduling changes

Unexpected absences can happen, but they don’t have to disrupt your operations. A reliable shift swapping or replacement system ensures you can quickly fill gaps caused by no-shows or last-minute call-outs. 

Managers can use Workforce.com to reassign vacant shifts. Available and qualified employees can claim open shifts, either through a manager’s direct offer or a system-wide notification. Depending on your settings, employees can trade shifts and have those changes automatically apply to schedules or with manager approval for added control.

5. Apply automation to reduce admin work and avoid scheduling conflicts

Employee scheduling goes beyond assigning team members to shifts. It requires balancing different, and without a proper system in place, it’s easy for things to slip through the cracks.

Beyond operating hours and number of staff members, managers also need to to look at time-off requests, employee classifications, labor forecasts, and compliance requirements. Ensuring all of these factors align each work week is challenging, but Workforce.com’s scheduling app simplifies the process.

With Workforce.com’s scheduling tool, creating schedules will not be as time-consuming. It offers powerful functionality to speed up the process. For instance, recurring work schedules can be saved as schedule templates. Instead of creating schedules from scratch, you can simply copy, paste, and adjust the templates as needed, saving you time and minimizing errors.

6. Actively reassess and adapt

The common thread running through these steps is that nothing about employee scheduling is static. 

Laws change, individual employees may become more or less productive over time, and the most efficient ones may leave if they’re not getting sufficient hours or good shifts. 

Continually use the resources and data you have to understand what’s successful on your front line. The same old employee shift scheduling patterns might stop working over time. And your employees’ needs and levels of engagement will change. Effective employee scheduling requires that you’re aware of these developments and adapt to them.

Going beyond employee scheduling

Employee scheduling is significant, but true workforce success goes far beyond just filling shifts. Managing an hourly team requires integration between scheduling, time and attendance tracking, hiring and retention, and payroll.

That’s where Workforce.com comes in.

With Workforce.com, you don’t just schedule shifts. You hire the right talent, track time accurately, schedule employees strategically, and ensure accurate, on-time payroll. Everything is housed in one unified system, giving you a single source of truth for workforce management and HR.

Workforce.com has transformed employee scheduling, HR, and payroll worldwide. But don’t take our word for it—see it for yourself by booking a demo today.

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How to calculate PTO hours + accruals

Summary

  • Paid time off comes in many different types, including vacation, sick leave, personal leave, and bereavement time. – More

  • Your company can also choose to have workers accrue their time off, offer PTO up front, or even offer unlimited time off. – More

  • No matter your company’s specific time off policy, automatic PTO tracking software calculates leave for you and ensures proper coverage. – More

Workers are finally starting to take more time off for vacation and rest, a pretty significant shift in America’s always-hustling working culture. According to a Korn Ferry survey in 2021, 79% of workers said they planned to use more vacation days that year than in years past, and 82% said they would appreciate more vacation time in our post-pandemic world.

Paid time off (PTO) has always been valued by employees. 76% of American workers feel that it’s very important their company provides PTO. Paid sick time (74%) and paid holidays (74%) are also very important among workers. 

Also read: Paid Sick Leave Laws by State

Employers can retain more workers, lower stress levels, and improve productivity among their workforce by developing a clear and fair PTO policy. But there’s no “one size fits all” approach to adopting the perfect plan for your company — you’ll have to sort out the right policy based on your workforce needs, then make sure you’re calculating time off banks correctly to help each worker get the time they’re entitled to.

Breaking down the types of PTO

There are a few different reasons why an employee might use their PTO. Depending on your company policy, they might use any available PTO day for any of these reasons, or they might have an allotment of days for each category.

  • Vacation: This is your run-of-the-mill bank of time for employees to use for day trips, staycations, travel, weddings, or the like. If it’s something they’re planning for, they’ll likely use vacation days.
  • Sick time: If an employee isn’t feeling well enough to work, they can take a sick day to rest up. Well-being also includes mental health; according to a survey by Breeze, 63% of respondents said they had taken a mental health day in the last year.
  • Personal days: Personal time is for when things happen outside the worker’s control. Maybe they’re stuck in a blizzard coming home from their in-laws, or they have to say goodbye to the family pet. Personal leave is there for life’s curveballs.
  • Parental leave: Companies aren’t legally required to offer paid parental leave, but some still offer it as a benefit to their workers. More businesses than ever were paying maternity and paternity leave benefits after the pandemic, but that trend is curtailing again. According to SHRM, 35% of companies offered paid maternity leave in 2022, and 27% offered paid paternity leave.
  • Jury duty: If an employee gets called in for their civic duty, their employer may choose to offer them PTO for at least part of their service.
  • Bereavement: Bereavement time is meant for employees who lose a loved one. Some companies only allow bereavement leave for close relatives. Workers can use this time to attend the funeral or other memorial services, or just take time for themselves to grieve without thinking about work.

How does PTO work?

You can allocate time off to your employees using a few different systems. In a traditional PTO format, workers accrue time off based on their hours or days worked. But more employers these days are leaning towards more flexible time off policies.

Accruing Time Off

With this type of policy, your workers will accrue time off based on every hour or day they work. The accrued time off will be added to their PTO bank, and they can take time off when they have enough hours banked. You can choose to lump all types of PTO together or distinguish between vacation and other types of PTO.

Usually, employees accrue different types of PTO at different rates. For example, for the year, your policy might grant ten days of vacation, five sick days, five bereavement days, and three personal days. Then, for each 40-hour workweek, employees will accrue their vacation time faster than their sick time, bereavement leave, or personal time. Employees with more years of service might also accrue more paid days of leave per year.

With an accrued time off policy, employees have to wait until enough time is banked to use their PTO. That means that you can’t just look at scheduling needs when weighing PTO requests — you’ll also have to track each worker’s banked PTO to ensure they have enough balance.

Unlimited Time Off

In an unlimited time off system, there’s much more flexibility for employees to take days off as they wish. There is no set number of days in an unlimited PTO system. Instead, employees can take off as many days as they’d like, for any reason, as long as the time off is approved by the company and they’re still fulfilling their individual responsibilities.

This flexibility can be a benefit to employees. There’s usually a level of trust that workers will take the time they need to stay rested and attend to personal matters while remaining productive at work.

However, an unlimited PTO policy also comes with some severe drawbacks. Studies show that employees, on average, take less time off under an unlimited policy than those who operate under a traditional policy. This is most likely due to a sense of guilt and other unspoken, toxic workplace stigmas around taking leave. 

Just like in a traditional accrued time off structure, managers and company leadership still have to approve time off in an unlimited policy. If you opt for this type of format, the difference is you won’t be looking at the hours available in an employee’s time off bank. Before you approve any leave, you’ll still typically review factors like workforce coverage, scheduling needs, and productivity.

Under an unlimited PTO policy, you also don’t have to pay employees for the time off they’ve accrued when they exit your company. In a traditional PTO system, you do owe workers for any unused PTO time that they’ve banked during their tenure. When an employee leaves, they’re usually entitled to a payout of the days of PTO they accumulated.

How to calculate PTO

Small-business and startup consultancy Bizfluent notes that calculating PTO by pay period allows organizations to evenly distribute an employee’s time off accumulation throughout the year.  Organizations with hourly or part-time employees should consider providing PTO based on the number of hours worked. When an organization calculates PTO hourly, it allows employers to award less PTO for hourly employees who do not report to work (for whatever reason) or for part-time employees who do not always work the same number of hours in a pay period.

One metric employers can follow to calculate PTO is dividing the annual PTO hours by annual work hours. For example, if an hourly employee earns 80 hours of PTO each year and works 40 hours a week, or 2,080 hours per year, divide 80 by 2,080. That works out to an employee earning 0.038 hours of PTO for each hour worked.

The PTO formula is:

Hours of PTO / hours worked each year = hours of PTO earned per hour worked

So in our above example, the organization’s PTO formula for this employee would be:

80 hours / 2,080 hours = 0.038 hours of PTO earned per hour worked

How to navigate common PTO challenges

Even if you set a clear PTO policy, there are bound to be situations or employee requests that fall outside of the policy that you’ll still have to balance. The key is to treat all employees fairly and accurately track PTO balances so you know exactly where you stand.

A sick employee has already used all their days.

Combining sick leave and vacation into one PTO category can lead to unplanned consequences for employees. If a sick employee has used all their PTO days, they might feel compelled to show up ill and risk infecting co-workers.

Help employees plan for this by offering guidance during onboarding or in posts throughout the year via internal communications about the importance of banking some PTO for sick days. For example, advise employees to consider paid time off as five days of vacation, four sick days or an unplanned emergency, and one day for a special occasion.

A new employee needs to use PTO days before accruing them.

Companies often hire employees with previous personal commitments for which they need time off after being hired. Prospective candidates often are honest and upfront about this as the hiring process progresses. 

Since most policies establishing how to calculate PTO makes it hard for employees to take time off in the early months of their employment, many employers will allow employees to “borrow” their PTO. Allowing 40 hours of borrowed time gives an employee a full week off. To avoid lump accumulations and to calculate PTO more accurately, companies can implement earning PTO incrementally with each pay period.

If you allow your employees to borrow ahead on their PTO plan, you’ll need to track the borrowed hours accurately. You’ll also need visibility into the rest of your attendance and scheduling to quickly identify and resolve any coverage issues, especially for unplanned absences like a death in the family.

Tracking PTO doesn’t need to be difficult

Effective leave management is crucial for shift-based workforces. For one, it promotes employee well-being and reduces burnout. It also keeps you compliant with various wage and hour laws in your state. But most importantly, handling PTO properly keeps shifts organized and lowers the chance of scheduling mistakes. 

You could manually approve, calculate, and track PTO across your workforce – this is fine enough for a small business. But one slight misstep can wreak havoc on timesheets and schedules. To save yourself the headache, utilizing an automated PTO tracker is a good idea. For shift workers, it is important that something like this be mobile-first and optimized for self-service; this way, the admin work is as non-intrusive as possible.

Mobile app that employees can use to request PTO

An app like this can do things like:

  • Automatically track leave balances
  • Calculate and apply PTO to timesheets
  • Prevent employees on leave from accidentally being scheduled
  • Allow employees to request leave and check their balances
  • Let managers review past and upcoming time off on a calendar
  • Allow managers to create custom accrual rates

Pretty sweet, right? If you want to learn more about how this all works, contact us today. 

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5 sneaky ways employees commit time theft (how to stop it)

Summary

  • Time theft is what happens when an employer unknowingly pays an employee for time they didn’t work while on the clock. 

  • Examples of time theft include falsifying time cards, buddy punching, unauthorized or extended breaks, excessive social media use, and personal activities on company time. – More

  • You can deal with time theft by implementing HR policies and utilizing automated time and attendance software. – More

If you discovered that one of your employees was stealing money or equipment from the company, you’d likely reprimand or even terminate them. What you may not realize is that another type of theft is likely happening right under your nose — time theft. 

Software Advice surveyed shift workers and found that 43% of hourly workers admitted to over-reporting the number of hours they actually worked during their workday. This type of employee theft can result in big losses for your organization. If every employee over-reported just 30 minutes of work every day, this could result in thousands of dollars lost to time theft every month.    

To tackle the issue of time theft, you must first understand how your employees could be stealing time in the first place. You should implement a time and attendance policy that clearly states the organization’s stance on time theft, the expectations of the staff, and the repercussions for breaking these policies.

Beyond this, you should consider where your manual time tracking processes are most vulnerable to abuse and seek ways to increase automation across your workforce. 

How to stop time theft for good

What is employee time theft?

Employee time theft occurs when an employer unknowingly pays an employee for time they didn’t work while on the clock. 

It’s primarily applicable to hourly employees more so than exempt employees. If left unchecked, employee time theft costs can eat away at your monthly wage cost budget very quickly. 

One of the more egregious cases of employee time theft involved a US Postal Service employee in Washington, D.C., who received $31,000 in wages for jury service that the employee claimed lasted 144 days. The theft investigation revealed that the employee had actually been discharged from jury duty but forged court papers to persuade his employer to pay him for what turned out to be a very long vacation.

Your time theft problem might not be as bold as the US Postal Service’s. Smaller, everyday occurrences of time theft are more difficult to spot but still negatively affect your organization’s bottom line and employee productivity. 

1. Falsifying time cards

The falsification of a time card occurs when an employee provides inaccurate data about their working hours or causes others to provide misleading information. This typically occurs with manual timekeeping systems or tracking employee hours with a time clock.

For example, say an employee only works 30 hours in a week but claims 40 hours of work time on their timesheet. Or deceitfully claims to have worked an entire shift, such as at the end of 2022, when a Polk County firefighter was arrested for falsifying his time cards. He had received a total of $1,265.04 for three 24-hour shifts he did not work.  

Solution — use automated time tracking software.

Paper timesheets are the simplest way for employees to steal time, and physical time clocks allow for multiple excuses: “So-and-so lost their time card, so I loaned them mine,” or “I lost my swipe card.” With time clock software, you can prevent fraudulent time theft and early clock-ins and prompt employees to clock back in via mobile apps when their breaks are over.

A mobile tracker app also empowers managers to follow employees in real-time from anywhere and continue tracking when an employee clocks in. Workforce.com’s mobile time clock app helps you manage employees’ time and administer digital timesheets, payroll, budgeting, and labor compliance reporting. 

You also can track remote employees’ locations via their GPS clock-in. These tools work everywhere and show you their exact location at a glance. You can restrict their clocking in or out at your job site or see where an employee who always has an excuse for being late is actually spending their time.

2. Buddy punching

Another form of time theft is when an employee clocks in or out for a coworker. This is often referred to as buddy punching. Companies that operate using rudimentary procedures around clocking in are at higher risk of having their employees cheat the system in such a way.  

Solution — automate clock-in and clock-out procedures.

Time and attendance software like Workforce.com makes buddy punching virtually impossible. Employees automatically punch in and out through their smartphones using photo identification and passcodes – this ensures that the right person has clocked in for the right shift. 

3. Unauthorized or extended breaks

Employees deserve their break time — breaks are required by law in some states. But there is room for abuse. Employees could easily extend their lunch break time by a few minutes on a regular basis. Excessive cigarette breaks are also often flagged as a cause for concern. In light of the time used up on smoke breaks, one UK-based company even awarded its non-smoking employees four extra days of time off.

Solution — build a healthy break culture that is effectively managed through scheduling and tracking solutions.

Taking lunch breaks from time to time is important for employee engagement and productivity. So, regulating your team’s break activities shouldn’t be done in a way that puts them off from taking theirs altogether. Create a healthy break culture within your team by doing things like: 

  • Encouraging staff to actually take their breaks
  • Having management take breaks themselves and lead by example
  • Providing pleasant spaces for your employees to take their breaks in
  • Offering catered lunches

Furthermore, Workforce.com’s scheduling solution automatically allocates rest breaks that are compliant with state law. This information is also readily available for employees through their employee app. 

This way, your employees get the rest they need without taking longer breaks that ultimately constitute time theft. 

4. Excessive social media usage

Social media use on the clock is inevitable. When it happens consistently, it can be considered a type of time theft. One study by Desktime found that of the time employees spend on non-work-related websites, nearly 50% of that time is on social media. 

From the time spent on work-unrelated websites, social media takes up 49.1%. 

Solution — incorporate clear guidelines about social media use into your company policy.

Employees using social media and checking their phones while at work is inevitable, to some extent, and attempting to cut it out altogether will likely cause resentment. Instead, develop clear policies on acceptable social media use in the work environment. Your policy could include information on:

  • The distinction between social media use for work purposes (if applicable) and for personal use
  • Times and places for personal social media use; for example, employees can only use it during their break times and not in the work area
  • Policies around posting photos or videos on company property and/or wearing company uniforms

5. Personal activities on company time

You may experience employees who have no problem carrying out personal tasks while on the clock. This could include taking personal calls, online shopping, running errands, or even running their side business. Excessive socializing between coworkers could also be considered time theft.

Solution — create a great sense of ownership and accountability amongst your team. 

There are a number of ways employees can avoid working and take personal time during their work shifts. Turning your workplace into a police state is one way to handle the problem, but it would negatively impact your team’s morale. 

Alternatively, you should strive to create a work environment that prioritizes and harnesses employee satisfaction. When employees care, their loyalty and productivity increase. Implement a system of employee rewards and recognition. Grant time off — or add in an extra shift — for shift workers who excel in their roles. Creating a culture of honesty, transparency, and trust helps prevent time theft.

It is important to communicate with your team to understand what needs to be done to help boost employee morale. 

As Tom Smith, co-founder of Partners in Leadership and three-time New York Times bestselling author, once said, “An attitude of accountability lies at the core of any effort to improve quality, satisfy customers, empower people, build teams, create new products, maximize effectiveness, and get results.” 

Dealing with employees who have committed time theft

Dealing with employees who have been caught buddy punching, taking longer breaks than allowed, or committing any other type of time theft can be tricky. Your first instinct might be to refuse to pay that employee for the time they have stolen, but this can prove to be more costly down the line. 

If you refuse to pay for the hours worked because you think they were falsely reported, you could be drawn into a costly wage-and-hour lawsuit for back pay.

And, if you respond to the lawsuit with a claim of employee time theft, it could be considered retaliation against the employee. Be sure you have a reasonable basis for filing the claim to avoid retaliation.

You are much more susceptible to wage-and-hour and overtime lawsuits with lax time and attendance policies or unsophisticated timekeeping practices. Business owners are turning to automated time-tracking solutions to monitor employee hours.

Create time and attendance policies

It is important to establish clear and specific time and attendance policies and ensure that they are communicated well to your staff. If your team isn’t aware of what is expected from them when it comes to attendance and time theft, how can they abide by your rules?

Ensure your team knows why you are implementing the policies and what is expected of them.

The first thing to do is consult with your employment law attorney regarding local, state, and federal time-theft regulations. An employer can work with you to develop clear, consistent policies regarding clocking in and out procedures, break periods, and cell phone and social media use while clocked-in. It’s crucial that employees fully understand their work-related responsibilities and know what they should be doing when there are lulls in the workday.

Immediately incorporate these policies into your employee handbook. All hourly and salaried employees must review and sign a document stating they have read and understand the policies in the handbook. Also, post reminder signs in high-traffic areas and send alerts through mobile apps so employees can see them. 

Follow through on procedures and disciplinary actions

You don’t want to punish employees. It’s costly and emotionally draining for all involved, and it can suck the morale out of a workplace. But you need preventative measures in place should you discover evidence of time theft. 

Develop and communicate in your handbook the disciplinary procedures to deal with time theft. This may include a program in which you initially issue a verbal warning followed by a written warning or establishing a performance improvement plan that’s ultimately followed by suspension and concluding in termination. 

If it reaches that point, Findlaw.com states that if an employee is suspected of stealing time, it’s up to you to conduct a fair, accurate investigation. Someone other than the person who discovered the theft of time should investigate it, strict confidentiality must be maintained, and you should enlist expert help from a CPA, an attorney, or other relevant professionals.

Compliance with wage-and-hour laws is a headache and difficult to track. Constantly turning to a labor law attorney gets expensive quickly. The laws, regulations, and ordinances can be overwhelming, and a wrongful termination suit is costly. Workforce.com’s compliance platform ensures simplified and automated compliance with federal, state, and local labor regulations.

Stay on top of time theft with Workforce.com

Time theft doesn’t have to be a cost of doing business. It’s challenging to deal with time theft and recoup losses, but Workforce.com has the systems and processes that empower you to prevent time-theft losses from ever occurring again.

Here are a few practical ways Workforce.com helps you crack down on time theft:

Geofencing

Geofencing technology allows you to limit the radius in which employees can use their mobile time clock to punch in for work. This means they always have to be physically present at work to clock in, preventing them from clocking in at home while running late.

Photo identified clock-ins

With Workforce.com’s time clock, staff take a quick selfie every time they clock in for a shift. These photos accompany every timesheet, helping managers confirm employees are who they say they are when clocking in. Photo identification like this prevents buddy punching, a common form of time theft.

Time clock passcodes

If you opt to use a single tablet as a time clock for all staff members, Workforce.com assigns everyone unique passcodes. Employees use these passcodes to securely clock in and out of work without anyone else doing it for them.

Meal and rest break clock outs

You can automatically apply lunch breaks to every shift you create in Workforce.com. If an employee has a break scheduled, they must physically clock-out and then clock back in once their break is complete. This break time is then recorded on their time sheet. Having a specific break button like this ensures an employee never takes unauthorized extended breaks.

Real-time solutions like Workforce.com’s time and attendance system prevent time theft and streamline the payroll process. Automated solutions also provide your managers with a worry-free system so they can focus on running a business and not hovering over a time clock. But don’t take our word for it. Check out the free webinar below, where Forrester Research dissects the ROI businesses can expect from time and attendance platforms: 

Webinar: Building a Business Case for WFM

Build your culture, track employee hours, and crack down on time thieves with Workforce.com’s time and attendance software. Start a free trial today.

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Why tattleware isn’t the solution for underperforming teams

Summary

  • Tattleware is not just intrusive; it is also ineffective, as your employees still have access to their own devices.

  • Employees who are being monitored can feel stressed and resentful, leading to higher turnover rates and lower productivity.

  • The use of tattleware makes your organization vulnerable to undesirable legal situations.

Employee monitoring has long been a topic of much interest and debate. In an attempt to find out the extent of employee productivity, employers have sought ways to keep tabs on their workers — from Henry Ford’s 1914 Sociological Department that was used to monitor practically every aspect (work and personal) of Ford workers’ lives to Elon Musk contracting a PR firm to monitor Tesla employees’ Facebook activity. 

As hybrid and remote work become more commonplace — spurred on by the COVID-19 pandemic — more employers are turning to employee monitoring software, also known as tattleware or bossware. Without the ability to physically see their employees hard at work at their desks, companies are turning to different apps, monitoring tools, and surveillance software.

According to a survey conducted by the IDC, 67.6% of North American employers with more than 500 employees are currently using employee monitoring software. In another study, ExpressVPN found that 78% of the employers it surveyed are using monitoring tools. 

Tattleware and monitoring software can take on many different forms. Some examples include monitoring:

  • When an employee steps away from their computer
  • Employees’ online activity (websites visited, time spent using specific software like Slack, etc.) 
  • What employees are typing and what keystrokes are being used
  • The topics of discussion amongst employees by taking screenshots or even screen recordings
  • The facial expressions of remote workers during video calls using video analytics tools (this supposedly helps employers determine who is contributing more than others in meetings) 
  • What employees are doing by watching and listening in through their laptop webcams or microphones

We spoke with Jon Hyman, a partner in the Employment & Labor practice at Wickens Herzer Panza, to get his take on the topic. He believes that “employers that try to regulate employees’ use of workplace technologies in this way are fighting a Sisyphean battle.” It is a futile and harmful practice that uses tech to police and punish employers instead of effectively addressing productivity issues.

Enforcement will always be a losing battle

One issue with tattleware is that it is actually quite ineffective in doing what it ultimately sets out to do – keep tabs on your employees. 

“I hate this type of employee monitoring. I call it the iPhone-ification of the American workforce,” says Hyman. “No matter your policy trying to monitor your technology and your employees’ related productivity, if your employees can take their smartphones out of their pockets to circumvent your efforts, how can you effectively police anything? Why have a policy you cannot police and enforce? It’s also incredibly creepy and intrusive.”

You have a performance issue, not a tech issue

Tattleware supposedly makes it easier for employers to identify employees who are slacking. But knowing the time spent on work tasks or whether they’re streaming the World Cup on another tab doesn’t tell you anything about why productivity is suffering. 

“Instead of regulating an issue you cannot hope to control, treat employees’ use of technology for what it is — a performance issue,” Hyman explains. “If an employee is not performing up to standards because he or she is spending too much time on non-work activities, then address the performance problem. Counsel, discipline, and ultimately layoff if the performance does not improve.” 

Employee monitoring breeds resentment and reduces employee engagement

“A slacking employee, however, will not become a star performer just because you limit their social media access, keep an eye on how often they shop on Amazon, or log their Spotify playlists,” Hyman says. Instead, “they will just find another way to slack off and will resent you for your intrusion of their privacy. Instead of wasting your resources to fight a battle you cannot win, reapportion them to win battles worth fighting.”

In its survey, ExpressVPN found that the use of tattleware can have negative effects on employee mental health and wellbeing. Most employees surveyed felt stress and anxiety about their employers monitoring their activities. Thirty-two percent of respondents said that they didn’t take breaks as often for fear of repercussions. 

The very tools that are meant to be addressing dips in productivity are ultimately breeding distrust amongst workers, reducing performance and employee engagement. 

In a period where employees are resigning in droves, how wise is it for your company to gain a reputation for spying on their staff? 

Employee monitoring can leave you vulnerable to legal issues

Although there are many employee monitoring service providers out there that work within the law, using tattleware can land you in some unpleasant legal situations. 

According to the law firm Skadden, there are five potential legal issues to consider before implementing tattleware:

  • Invasion of privacy. An employee could take legal action against you if your monitoring activities are found to be highly offensive or end up revealing facts about their personal lives outside of work. 
  • Unfair labor practice charges. Under the National Labor Relations Act of 1935, employers can be charged if their monitoring reveals information about labor organizing efforts. 
  • Employment discrimination. Tools like facial recognition software may reveal characteristics about employees that are legally protected. Facial expression tools may not take cultural differences into account and make unfair assumptions about certain staff members. 
  • Unpaid wages and overtime. Just because an employee isn’t at their computer, it doesn’t mean that they aren’t working. Using monitoring software to pay hourly employees could result in unpaid wages and overtime for time spent doing things like reading, writing, taking phone calls, etc. 
  • Workplace injuries. Monitoring software can lead to overworked and burnt-out employees. Physical injury may also occur. In March 2022, a large e-commerce company using monitoring tools was fined $60,000 for causing employees’ joint and muscle injuries. These injuries were a result of employees overworking in order to meet deliverables.   

Build an environment of trust instead of fear

“We ask so much of our employees, even more so during COVID. The 9-to-5 is no longer relevant. If my employee, who is giving up nights and weekends for me, wants to spend a few minutes during the workday posting to Facebook, or checking the score of last night’s game, or buying something on Amazon, I just don’t care. I only care when it reaches the level of distraction and impacts performance. Then, however, we are treating the performance problem, not the technology problem—which is the appropriate and practical solution.”

“To put it another way, if you don’t trust your employees enough to do their jobs, why are you employing them in the first place?” Hyman concludes. Ultimately, spying on your employees damages your reputation and breeds mistrust. A happy, productive, and engaged workforce is attainable through trust, transparency, and capable leadership.

An engaged workforce is a productive workforce

The best way to ensure your team stays productive and maintains good performance is to keep them engaged. Workforce management software sets you up to get the basics of employee engagement right. 

Scheduling must be done in a way that is fair, efficient, and transparent. It must be flexible, allowing for adjustments like shift swaps and shift bids to be made on the fly. You also need a precise time and attendance system in place that makes it easy for employees to review their hours and see what they’re owed.

For more tips on how to drive employee engagement, watch our webinar – How to Drive Engagement for Hourly Employees

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Employee or contractor? 6 worker misclassification FAQs

Astronaut Dog Thinking

Summary

  • Misclassifying full-time employees as independent contractors can lead to legal and compliance issues down the line. 

  • There are a number of ways to determine whether or not a worker should be classified as an employee or contractor. 

  • Aside from seeking legal counsel, employers can use workforce management solutions to stay compliant with labor laws and properly classify workers. 

The number of freelancers and independent contractors is growing steadily in the United States. McKinsey found that approximately 58 million American workers, or 36% of the American working population, consider themselves to be independent workers. This figure is expected to reach 90.1 million by 2028. 

With this rise in contractors in recent years, worker protection laws are shifting to reduce incorrect worker classification.

Worker misclassification is when a company hires individuals as self-employed or independent contractors to carry out the tasks of a full-time worker. 

To learn more about the misclassification of employees and its implications, we spoke with Hinshaw & Culbertson law partner Aimee Delaney.

What exactly is worker misclassification?

“Misclassification is a term that is used when an employer incorrectly identifies an individual or position as an independent contractor when the individual is really an employee,” said Delaney. 

According to Delaney, there are a number of circumstances that can motivate employers to classify individuals as contractors: 

  • Independent contractors are not subject to state and federal wage laws, which means they are not entitled to overtime if they work over 40 hours a week. 
  • An employer does not have to pay the employer portion of payroll taxes and does not make withholdings for an independent contractor. 
  • An independent contractor is also not entitled to benefits such as workers’ compensation or unemployment benefits from the organization that the individual contracts with. 

“Misclassification does not require bad intent to be a violation,” said Delaney, “so even if it was an honest mistake, it can still present a violation of law.”

Delaney added that the definition of an employee, as opposed to an independent contractor, lies with the employer. It should evaluate whether it has employees on the payroll who are performing the same work and function as the independent contractor. A good follow-up to that question is will the independent contractor be performing the main work of the business.

“Answering these questions in the affirmative is usually a sign of trouble,” Delaney said. “So if I run a home health business and have a staff of 25 home health workers but want to bring on three more as independent contractors, you are probably well on your way to misclassification.”

Delaney said the home care and home health industry can suffer from labor shortages. While trying to use independent contractors to address a shortage of workers may be tempting, it can also be risky, she said.

“Staffing agencies would be a better resource in that scenario, as it avoids the misclassification issue,” Delaney said. “You may not be able to avoid a joint employer issue, but at least you should avoid the misclassification issue.”

Why does employee misclassification matter?

Employee misclassification is bad for business, bad for workers, and bad for the public sector. According to the U.S. Department of Labor (DOL), misclassified employees lead to lost government contributions that should be going towards things like state unemployment insurance and workers’ compensation insurance.  

While employers might attempt to incorrectly classify their employees to avoid having to deal with tax withholding, the financial and reputational consequences of doing so greatly outweigh the savings.

Workers who carry out the role of employees but are contracted as freelancers are not entitled to the same rights and benefits. They are not eligible for things like paid vacation and sick leave and can be laid off much more easily.  

Independent contractors are also responsible for paying their own Social Security and Medicare through the Self Employment Tax (SET).

How do employers typically classify a permanent employee versus an independent contractor? 

When an employer hires a permanent employee, that person is expected to devote their full workday to the tasks they are given by the employer. Permanent employees cannot work for other organizations at the same time. 

The employment relationship between a company and an independent contractor, on the other hand, is of a different nature. According to Delaney: 

An employer will typically only have an independent contractor for some type of special project that falls outside of the normal business conducted by the operation. For example, a law firm may need to upgrade its document management system and retain a third-party vendor as an independent contractor to complete the project. The contractor is not performing the work of the law firm, the law firm does not exercise control or supervision over the vendor and only controls the ultimate product. This concept is also separate from the concept of temporary staffing, which relies on the use of temporary workers that are employed by a third party.

The  California law Assembly Bill 5 (AB-5) clarifies the difference between employee and contractor in the state. The California Supreme Court requires the use of the ABC test, outlined on the ca.gov website, which assigns three conditions that must be met to consider an employee as an independent contractor:

  • The worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact;
  • The worker performs work that is outside the usual course of the hiring entity’s business; and
  • The worker is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.
(Source: https://www.labor.ca.gov/employmentstatus/abctest/)

Also read: Ease compliance concerns with workforce management software

What is the advantage for employers to classify their workforce as independent contractors? 

Some employers think worker misclassification is worth it because contractors are more affordable. But Delaney says the risks involved outweigh the perceived benefits:

“There is no advantage to employers if the classification is not correct, because the risk and liability will generally outweigh any benefit. If the classification is appropriate, the advantage is often a lower cost with a known end date. As noted above, independent contractors are not subject to state and federal wage laws, so they are not subject to the minimum wage and overtime requirements.”

What should employers know about defining their workforce to avoid misclassification? 

“Employers must be aware of the key concepts and tests that are applied to determine whether independent contractor status is appropriate,” says Delaney. “These are the tests that will get used by the Labor Department, the Equal Employment Opportunity Commission (EEOC), the IRS, etc. In some form or fashion, these tests all look to the level of control exercised by the organization over the individual and the economic realities of the relationship.”

If you are using the services of independent contractors, Delaney recommends that you carry out regular audits to make sure that you are doing so in a compliant way. If you do find cases of misclassified employees, you will also need to assess whether any overtime wages are owed to them.  

Also read: What employers and HR should expect from new Labor Secretary Marty Walsh

Is employee misclassification a growing trend in wage and hour/overtime violations? If so, why is that?

The wage and hour laws stipulated in the Fair Labor Standards Act (FLSA) do not apply to independent contractors. Because of this, companies with misclassified workers are often found guilty of breaking wage and overtime violations.

If a worker is found to be misclassified, their employers might end up owing them significant amounts of money in back wages. 

Stay compliant with a workforce management tool

Navigating federal and state laws around labor codes and employee classification can be tricky. The language is complicated and misinterpreting it can lead to mistakes that break the bank and your reputation. So when in doubt, seek legal advice. 

Workforce.com can help with our powerful wage and hour compliance platform. It accounts for federal, state, and regional wage laws when paying salaries, even in situations where your staff might be distributed around the country. And most importantly, an automated workforce management system helps you maintain an accurate paper trail for whenever external audits come knocking. With detailed labor records, you can rest assured that misclassification accusations will never catch your organization off guard. 

Book a demo today to keep your time tracking and scheduling air-tight. 

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Human capital management: Considerations to better engage employees and promote diversity

Summary

  • Great employees are your most vital resource — human capital management helps you attract, support, promote, and retain them.

  • Your strategy should include everything from a strong recruitment and onboarding experience to an enticing benefits package that’s compliant with regulations. 

  • HCM systems help you optimize your strategy by automating tasks, tracking employee performance, and reporting on key insights for visibility. – More

Think about all the resources it takes to successfully manage your organization. Which of these resources is in the shortest supply? Time is certainly one of them — once you’ve lost a day, you can’t get it back. Financial capital is another tempting answer — but is it really that hard to apply for a loan or build a strategy toward growth when all is said and done?

No, the Harvard Business Review writes. Financial capital is not your most limited resource. “Today’s scarcest resource is your human capital, as measured by the time, talent and energy of your workforce,” it says. 

It’s significantly more difficult to continuously find high-performing employees who can deliver quality work for your organization. While an asset like time or money is generally fixed, the same isn’t true of human capital. One dollar or one hour is functionally the same from one to the next, but employees are unique. Once you lose a good employee, you can’t automatically swap in an employee who will continue performing at the same level.

According to Gallup, it typically takes new employees an entire year to reach their full potential after training and onboarding. And it’s costlier to replace workers than it is to retain them. On average, companies spend about half to two times an employee’s annual salary to completely replace them.

But your employees aren’t just your scarcest resource. They’re also your organization’s most valuable and influential resource. And the best way to retain that resource is through a human capital management plan that helps your employees feel supported and fulfilled when they come to work.

The essential components of a human capital management plan

Human capital management (HCM), as its name suggests, is an area of business management that ensures a holistic experience for an organization’s most important resource — its people. There are five main areas for HR professionals to focus on: 

1. Recruitment

Recruitment is the core foundation of building an organization’s human capital. It is involved in identifying the needs of the company and the particular roles that can fill those needs through talent acquisition. Attracting, screening, and onboarding candidates are all part of the recruitment process. The goal of the recruitment process is to successfully find candidates whose skills, values, and motivations are aligned with the organization’s goals and culture.

2. Compensation and benefits administration

Compensation and benefits refer to what the company gives its employees in exchange for their work or service, and they include monetary and non-monetary components. A company’s compensation and benefits package includes an employee’s salary and government-mandated benefits. Other perks and incentives can be part of the deal, such as insurance coverage, gym membership, housing allowance, and company-sponsored trips and events. 

3. Labor law compliance

Running an organization is governed by employment laws. HR teams create company policies and administrative functions that comply with labor regulations, such as accurate time tracking and paid sick leave. Labor law regulations vary by region, and they can change from time to time. That being said, a crucial part of human resource management is staying on pace with these changes and ensuring that company policies remain compliant. 

4. Training and development

Training and career development focus on nurturing your workforce’s potential, especially new employees who are still onboarding. Training refers to programs that are geared toward improving skills or learning new technical knowledge that’s needed to perform certain tasks. Meanwhile, development is focused more on programs that enrich an employee’s overall growth in soft skills like leadership, communication, and adapting to certain situations. 

5. Retention and engagement

Human resource management (HRM) is also involved in creating strategies to keep employee turnover to a minimum. Retention and engagement programs are proactive steps to ensure that employees are motivated to perform their best, not just for a paycheck but because they have a clear alignment of values with the organization. All of these parts should move cohesively to ensure the best experience possible for staff at every stage of the employee lifecycle. 

5 human resource management challenges impacting your HCM strategy

Human resource management involves a lot of moving parts, and these can come with their own sets of challenges. Here are common challenges in human resource management and ways to solve them. 

1. Difficulty attracting the right talent.

Delays in hiring can be costly, but an unfit hire can also be detrimental to an organization. So how do you know a candidate is fit for the role? While skills and experience are important for assessing whether an applicant is qualified or not, it’s also essential to find out if they’ll fit into your company culture, so you can be sure your workplace is the right fit. Otherwise, you won’t be able to retain them for very long.

Another common challenge is convincing candidates who are highly skilled and qualified yet more deliberative in their job search. These candidates are most likely in touch with a lot of recruiters and are considering more than one job offer. You’ll have to build a truly impressive candidate experience — and a great employer brand — in order to stand out and attract top talent.

How to solve:

  • Create a job posting that highlights what you’re looking for. Include the skills and competencies you’re looking for and what’s in it for a qualified candidate when they get in. Provide information about the working style and culture that you have at your company. This will attract people who have both the required skills and similar values as you. At the same time, this can also filter out candidates who have different working styles and cultural preferences.
  • Invest in employer branding: Boosting your brand as an employer can also help increase your chances of attracting the right talent. According to research from Glassdoor, 75% of active job seekers are likely to apply for a job posting if the company actively maintains its employer brand.
  • Prioritize strong communication throughout the hiring process: Make sure that all details and instructions are clear at every stage of the process. Timely feedback and responses are also crucial. Take a look at your current process and see how it’s affecting the candidate experience and employer brand. CareerPlug found that 84% of job seekers rate “hiring process transparency” as an important or very important factor in their decision to join a company.

2. Dealing with too much paperwork.

Human resource management deals with a lot of information — from employee details to company policies and other essential business documents. And too much paperwork can be a burden, especially when done manually. It can take time away from more valuable tasks, like strategizing and optimizing programs and processes. 

How to solve:

There are digital solutions that can remove the tedious task of processing paperwork. For instance, digital employee onboarding solutions help eliminate the long forms that new hires need to fill out. They enable new staff to log in with their information and upload important documents online. This ensures better accuracy of information, improves the employee experience during onboarding, and allows for a better way for new hires to spend their first day at work. 

3. Understanding and applying labor laws.

Staying compliant with labor laws is a must. However, understanding regulations, applying them in policies, and staying on pace with labor law changes can be very challenging. 

How to solve:

Implement a compliance strategy to avoid any potential financial and reputational repercussions of failing to comply. A compliance strategy is a set of programs and processes that’s geared toward ensuring regular updates and audits of policies and communicating any changes with staff promptly. Given the ever-evolving nature of regulations, it’s best to build a strategy and assign a working group to focus on compliance. 

Technology is also helpful in staying on pace with changes. For instance, some solutions automate labor law updates and ensure that these are reflected in the payroll computation. 

4. Retaining employees.

Talent management goes beyond just attracting the right people for the right roles. The other part of the battle is retaining them and keeping them satisfied with their role, especially those who are performing above and beyond. 

Webinar: How to Stop Employee Turnover

How to solve:

It’s all about consistent growth and learning. Employees are more likely to stay the course when they are given opportunities to grow and are recognized as a vital part of the organization’s success. 

Training and development programs are essential for retaining employees. But creating these programs is not a one-time thing. That’s why it’s important to have regular alignment meetings with your staff. Regular check-ins can help you get a pulse on their current sentiment about working at the organization, their satisfaction with their roles, and the challenges or gaps they’re facing. From there, you can customize programs or identify next steps that can help them stay engaged. 

One of the things to keep employees happy and help them feel valued is to provide not just what they need to get their job done but also offer other incentives that will motivate them to perform better and stay aligned with the values of the organization. Your benefits administration can show employees you care about more than just their performance, for instance. Succession planning is a great way to engage employees who are growing in their current roles while preparing for employees who may eventually move on.

5. Keeping talent engaged at every stage of the employee lifecycle.

Human resource management plays an important part in employee engagement, and it is a continuous process throughout every stage of the employee lifecycle, from onboarding up until the time an employee leaves an organization. All of these stages affect culture, staff morale, and the success of the company.

Webinar: How to Drive Employee Engagement

An organization is only as good as its employees. It’s imperative to nurture and cultivate staff no matter where they are in their tenure with the organization. Doing this takes time. That’s why it’s important for human resources to have the right technology in place so that they can reduce time spent on administrative tasks and focus more of their energy on engaging employees.

How to solve:

An effective onboarding process can help you engage employees who are new to the organization and need to get up to speed — without overwhelming them. Ongoing training sessions, team events, perks, and upskilling opportunities are all great ways to help your workforce stay connected at work while growing in their careers. 

Ultimately, you should look at your employee data, like plan enrollment and activity engagement, to see what HR processes and initiatives are having the biggest impact on employee retention and where engagement can still be improved. Then you’ll know which programs to add and continue to invest in.

Use a human capital management system to serve employees with ease

Manually keeping track of the key HR processes to support your human capital management strategy is bound to cause headaches — for your team and your workforce. Many companies implement HCM software in order to manage employee engagement programs, track performance and productivity, and provide things like onboarding and benefits to employees.

Workforce.com is a workforce management software that provides visibility into your scheduling and shift data, so you can better manage your hourly workers. You can accurately forecast demand, optimize labor costs, and build the best schedule for your team based on real metrics. And our solution integrates directly with other human resource information systems (HRIS) to streamline human capital management.

Read more about how Workforce.com optimizes how you manage your human capital by checking out our HCM software buyer’s guide below:

Best HCM Software

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Workplace things COVID has not changed: You can still fire dishonest employees

Suppose an employee leaves work claiming COVID-like symptoms. He then calls off work for the next two weeks, claiming he is quarantining at home at his doctor’s recommendation.

Can you fire the employee during that quarantine period? Does your opinion change if you learn during the quarantine that the employee’s doctor never recommended the quarantine and the employee lied about receiving that recommendation?

Those are the basic facts of O’Bryan v. Joe Taylor Restoration, and upon which a federal court jury in southern Florida recently entered a verdict in favor of the employer.

O’Bryan’s lawsuit claimed that his employer had denied him paid sick leave under the FFCRA during his quarantine and retaliated against him for seeking paid sick leave. The employer uncovered his dishonesty when it saw a discrepancy between the alleged note ordering the quarantine and a later note authorizing his return to work.
COVID has altered a lot about the workplace. Thankfully, however, the ability of an employer to fire a dishonest employee has not been one of them.
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Casinos scramble for post-pandemic talent as business rebounds

Eureka Casinos, talent, hospitality

Casinos across the United States were among the hardest hit businesses as the hospitality and travel industries suffered through the pandemic.

Conventioneers and gamblers disappeared and unemployment soared as the iconic Las Vegas Strip looked more like a ghost town than a glitzy, bustling entertainment mecca. And the numbers tell a bleak tale.

Gambling revenues slid by 31 percent in 2020, according to an annual report by the American Gaming Association. By comparison, the report noted that the industry’s economic tumble in 2020 far outdistanced the 8.4 percent decrease during the Great Recession. And, the Las Vegas unemployment rate reached 30 percent at the height of the pandemic, according to reports.

Business and employees slowly return

But the casino business is bouncing back. Employees are now being snapped up to fill thousands of vacant positions as the Las Vegas unemployment rate has slipped back to single digits. Many of them will be working the conventions — the Society for Human Resource Management and HR Technology Conference among them — that are finally returning to in-person events in Las Vegas this fall.

Along with the mega-corporations that line The Strip, Eureka Casinos appears to have weathered the storm and is shaking off the pandemic’s effects to fully reopen for business. With Nevada properties in Las Vegas and Mesquite and a casino in New Hampshire, Eureka Casinos is the only employee-owned gaming company in the United States. That distinction puts Eureka Casinos in a unique position to entice job candidates in a desperate battle to staff up as visitors return.

The battle for talent

The scarcity of good talent is particularly acute as casinos rush to re-staff, said Eureka Casinos Chief Operating Officer Andre Carrier. Any casino’s growth is tempered by its ability to field a qualified workforce, he added.

To be competitive in talent acquisition, Carrier said Eureka Casinos instituted hiring bonuses and is offering employees flexible hours and dual rates to fit staffing needs and schedules. But their key competitive advantage is employee ownership, he said.

“It means that our employees are provided with a long-term retirement benefit with no direct contribution,” he said. “This is an exceptional benefit and one we hope allows us to not only to retain our talented people, but attract future employees.”

Also read: Allied Universal boosts its hiring as demand for security services surges

With an employee stock ownership plan, or ESOP, employees take on an owner’s mindset, which means a stronger sense of buy-in to the business and each other, Carrier said. It became especially valuable as COVID-19 swept across the industry.

“The pandemic was an unimaginable crisis with much of the company’s business closing for nearly three months,” Carrier said. “The challenge was to establish new systems to care for the physical, financial and emotional needs of the employee owners rapidly and effectively.”

Research has shown that companies with an ESOP are less likely to lay people off and keep employees working than conventionally owned businesses. Employee ownership has helped Eureka Casinos build a family style atmosphere for employees among the massive gaming conglomerates.

Building employee engagement

Engagement was a huge priority for Eureka Casinos throughout the pandemic, Carrier said. Being a mega-corporation would have impeded their ability to focus on the needs of their 600 employees, 70 percent of whom are hourly.

“One of the main ways we kept our employees engaged throughout our three-month closure was a weekly drive-through food pantry,” he said. “Many of our employees volunteered to pack food baskets and pass them out, and we had volunteer drivers deliver baskets. This was just one more way that we came together as a family business.”

Producing videos on the expected timeline for the state’s shutdown, answering common questions and preparing employees for a return to work kept everyone updated, Carrier said.

Carrier said employees were paid “for as long as possible before any need for unemployment” during their closure.

“We also allowed employees to use paid time off if needed and paid for health care benefits while we were closed,” he said. Some departments remained on duty during the entire closure, he said, noting how the engineering team worked to fabricate all the Plexiglas dividers that were a requirement for reopening.

Vaccinating employees

Once vaccines were approved, Eureka Casinos worked with government agencies and local hospitals to develop a vaccination center and a process for employees and the community to get vaccinated. They created a reservations platform and staffed the center as well, he said.

Also read: EEOC says that employers legally can offer incentives to employees to get vaccinated in almost all instances

A rewards program also was established for employees wanting to be vaccinated.

“Any employee who gets vaccinated receives a cash bonus,” he said. “Once the company reaches two specific overall vaccination thresholds, additional bonuses are paid out to vaccinated employees.”

Tight talent pool

Carrier told Las Vegas television station KTNV that the pool of available worker talent in Las Vegas will remain tight as venues prepare for the second half of 2021. “This is arguably one of the most difficult times ever to find new people to join your company.”

But Carrier is optimistic that his casinos will fully rebound in large part because of their employees.

“Having hope for the future is a core value for Eureka Casinos, and the pandemic taught us how important that value is.”

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Poor recordkeeping contributes to contractor paying $500K in back pay, fines after Labor Department probe, litigation

poor recordkeeping

A New York-based contractor agreed to pay 69 employees $500,000 in back wages and damages to resolve violations of the Fair Labor Standards Act’s overtime and recordkeeping requirements after being sued in federal court by the Department of Labor.

Investigators from the department’s Wage and Hour Division found that Maio Building Corp. and owner John Maio often directed laborers and masons to work 10-hour days, five or six days a week, knowing the FLSA required employees to receive overtime pay when they worked more than 40 hours per week. The company reached a settlement and was ordered by the U.S. District Court for the Eastern District of New York to pay $250,000 in back wages and an equal amount in liquidated damages, according to a Labor Department statement.

Clean up recordkeeping

Maio also paid employees in cash or a combination of check and cash and failed to keep accurate records of employees’ work hours and regular hourly rate of pay, according to the Labor Department statement.

Poor FLSA compliance and recordkeeping that lead to steep Labor Department fines is avoidable, said employment law attorney William J. Anthony, a partner at Blank Rome in New York. The FLSA permits any form of timekeeping system as long as it accurately records all hours worked, he said. 

Also read: How to schedule employees effectively: 5 proven steps

“Many employers use electronic timekeeping systems and payroll companies to help with compliance and avoid legal issues,” he said.

Enforce your time and attendance policies

Sonya Rosenberg, a labor law attorney and partner with Neal Gerber in Chicago, added that it’s not enough to just have written policies. 

“You want to be sure they are consistently enforced and that there are established, working procedures in place for when any corrections need to be made,” she said. “Every organization needs to ensure that all of its employees, and particularly its frontline supervisors, managers and HR staff are well trained in wage and hour requirements.”

Employers must emphasize that accurate time tracking is an essential element of each employee’s job and that failure to adhere to the rules will result in discipline, said Kara Govro, senior legal analyst at HR consultancy Mineral (formerly ThinkHR and Mammoth). Make sure employees see and read the policy. Enforcing these policies is crucial.

“If you say you’re going to be serious about it, be serious about it,” Govro said. “Write employees up, issue final warnings and be prepared to terminate if you have employees who refuse to meet your clearly articulated expectations.”

Anthony cited four ways to clean up recordkeeping practices. 

  1. Publish a policy on how to accurately record time and how to report any payroll errors.
  2. Have employees certify that their weekly time records are accurate.
  3. Train new employees on proper timekeeping.
  4. Monitor the timekeeping and payroll systems regularly to ensure accuracy. 

Anthony also said that responsibility for accurate wage and hour recordkeeping typically falls on human resources or the in-house legal department to ensure compliance. In smaller organizations, it may be the owners or management personnel who are responsible, he said. 

“Under the FLSA, an employer includes individuals with decision-making authority and operational control over payroll and wage and hour practices,” he said.

The consent judgment is the outcome of a lawsuit filed by the Labor Department’s Office of the Solicitor. In addition to the payment of back wages and damages to the employees, the judgment prohibits Maio Building Corp. from:

  • Future violations of the FLSA’s overtime and recordkeeping requirements.
  • Taking retaliatory action against employees who exercise their FLSA rights.
  • Telling any of their employees not to speak with or provide untruthful information to Labor Department investigators.
  • Soliciting or accepting the return or kick back of the wages and damages from the affected employees.
  • Threatening or implying adverse action against any employees or former employees because of their receipt of funds due under the judgment or the FLSA.
  • Otherwise obstructing or interfering with any department investigative activities.

Maio denied the allegations and said the company acted in good faith and complied with the law, according to a June 7 Equipment World article. The response said the Labor Department’s claims were barred by the Federal Motor Carriers Act and that the division had denied Maio due process rights at the closing conference by “refusing to discuss the MCA exemption,” the article stated.

Stricter Labor Department enforcement

On April 30, 2021, a settlement agreement was filed with the court in which Maio neither admitted nor denied the allegations, but that the company agreed to the settlement “to avoid the burden and expense of litigation,” according to the article.

Given that the Labor Department under Secretary Marty Walsh is stepping up enforcement versus guidance, particularly in its wage and hour division, Rosenberg urged employers to review and update wage and hour policies and practices and to make any appropriate adjustments or corrections. 

“The DOL investigators are making no secret of the department stepping up efforts and increasing penalties for noncompliant employers,” she said. “For any employer with a significant number of nonexempt employees, this should be a high-priority area.”

Interestingly, a newly released survey by law firm Ogletree Deakins notes that 47 percent of employers surveyed say that state and federal agencies are more aggressive in terms of enforcement than ever. Anthony added that between stepped-up enforcement, changing regulations and guidance, along with state wage and hour laws, it is critical that employers stay abreast of all legal developments. 

“This is an area of the law where claims can be avoided if employers regularly focus on compliance,” he said. “Conducting internal pay practice audits, regularly reviewing payroll policies, training personnel responsible for compliance, ensuring accurate timekeeping systems and payroll practices can usually avoid damages being assessed by the Labor Department or a court.”

Labor Department investigations are largely driven by employees contacting the agency, Govro said. Once that call has been made, federal laws are in play, she said. 

The Labor Department isn’t going to just “guide” an employer in the right direction when they have been failing to pay minimum wage or overtime, she added. They are going to collect the back pay.

“The bottom line is that employers need to be paying very close attention to timekeeping and accurate payment of wages at all times, regardless of the DOL’s mood,” Govro said.  

Book a demo today to see how to build schedules, manage labor costs and ensure labor compliance with Workforce.com’s No. 1 employee scheduling software.

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Q&A: Excelling in defense of employers sued for wage and hour violations

employment law, Idalski

When employment law giant Seyfarth announced the arrival of partner Annette A. Idalski to its Labor & Employment department and Wage Hour Class & Collective Actions practice group, they were clearly adding someone who was used to winning high-stakes cases.

Since she began practicing employment law in 1995, Idalski has gained hundreds of successful outcomes defending employers against lawsuits brought by employees involving independent contractor status, wage and hour compliance, discrimination, and whistleblower complaints. Idalski was named among the Top 50 Women Lawyers in Georgia and was quoted in a profile as saying, “I strive for excellence and do not tolerate mediocrity. My clients hire us to win and we do everything in our power to make that happen.”

Following her move in May to Seyfarth, Idalski spoke via email with Workforce Editorial Director Rick Bell for this Q&A.

Workforce: What should employers do to avoid wage and hour violations?

Annette A. Idalski: Employers should draft and disseminate a policy clearly stating how nonexempt employees must record their time including time off for meal periods or breaks in service. It is also advisable to describe with particularity in the employee’s offer letter how the employee will be classified and to explain how the employee’s pay will be calculated including overtime pay and bonuses. Employees should sign their offer letter to acknowledge that he or she understands how his or her pay is calculated.

Workforce: The Department of Labor is once again stepping up enforcement, particularly in its wage and hour division. How are you counseling clients to boost their compliance?

Idalski: Employers should be quick to correct any mistakes that they identify as a result of wage compliance audits, or employee complaints. Proactive employers who make an effort to come into compliance before a DOL audit will fare much better with DOL investigators and could avoid penalties such as liquidated damages.

Workforce: Are you a believer that guidance from the Department of Labor is a stronger deterrent of wage and hour violations than enforcement?

Idalski: Yes. In my opinion, the DOL should focus more on teaching and training companies rather than trying to find violations. The majority of employers want to do the right thing. They want to comply with the law and would be receptive to “help” and “guidance” from the DOL. Unfortunately, the DOL has not focused on guidance and has over the years focused on enforcement which has caused many employers to fear the DOL rather than see the department as an ally.

Also read: Worker misclassification leads to $358K penalty for home health care provider

Workforce: Do any of your clients record time and attendance and overtime manually? What are the compliance challenges facing employers using a manual, paper-based system versus an automated system? 

Idalski: Yes, some clients record time and attendance and overtime manually. The compliance challenges facing employers who prefer a manual, paper-based system rather than an automated electronic system is most often inadvertent loss of the paper documents and less accurate reporting of hours worked, which can result in violations of the FLSA. For example, if an employee is required to keep track of his or her paper timesheet, the individual may lose it and then attempt to recreate the timesheet which, of course, may not be accurate. If litigation later ensues, the employer is left with missing timesheets and incomplete records. Further, employees who are manually recording their time may forget to do so on a daily basis and prepare all of their timesheets weekly or when the employer requires him or her to turn them in. Therefore, employers who use a paper-based system must have strict rules for compliance which include preparation and submission of all hours worked, start and end times, and breaks on a daily basis. Employees should also be required to sign their timesheets attesting to their accuracy.

Workforce: Is it generally an oversight when employees are misclassified?

Idalski: Yes. The majority of the time, misclassification occurs because the employer is well intentioned but simply made a mistake. For example, the employer may not know all of the tasks or the frequency of the tasks that an employee performs and may make classification decisions based on job titles and job descriptions rather than actually interviewing employees regarding their job tasks and the time it takes them to complete those tasks. Very rarely do employers intentionally misclassify employees.

Workforce: Do you look at the Labor Department as an adversary?

Idalski: On rare occasions yes. But not the majority of the time. The Department of Labor has an important role in ensuring that employees are paid fairly. While I have dealt with overzealous DOL investigators from time to time as well as investigators that I did not agree with regarding their application of the facts to the independent contractor (e.g., Gate Guard Services v. Hilda Solis) and exemption tests, most investigators simply want to ensure that employers are following the law, that they understand the law and that employees are legally paid.

Workforce: You’ve had some major victories in defending against wage and hour claims. What case are you proudest of?

Idalski: I am very proud of all our client’s victories. The case that has had the most significant positive impact on the energy industry (and other industries using similar models) is Parrish v. Premier Directional Drilling. The Fifth Circuit recognized that directional drillers were independent contractors and not employees. While this case concerned directional drillers, the court’s analysis can be applied to a myriad of oil field positions, and as such, has preserved the oil and gas industry’s business model. Given the fluctuations in demand for labor in the oil and gas industry, independent contractors are routinely used. If this business model were deemed illegal, it would be very difficult if not impossible for oil field services companies and oil and gas companies to operate successfully. I am very proud to have helped the energy industry in this way.

Also read: Oilfield pipeline inspectors working across 40 states awarded $3.8M in back wages

Workforce: How do you get people to look past, “big bad company cheating employees of their hard-earned pay” and realize that the company was in compliance after all?

Idalski: In the oil and gas industry in particular, workers who are classified as exempt from overtime or as independent contractors earn hundreds of thousands of dollars per year and are highly compensated. Those that are classified as independent contractors write off expenses, pay very little, if any, taxes, and enjoy the freedom to accept or reject projects offered to them. So when these workers file overtime claims against companies, it does not take long for juries or judges to understand that oftentimes it is the worker that is trying to take advantage of the company rather than the company taking advantage of the worker. It is unconscionable that a worker earning over $100,000 annually and who pays very little in taxes is entitled to overtime pay. Clearly, the public policy behind overtime pay was to ensure the lowest paid workers were not being overworked and taken advantage of. The overtime laws were not intended to overcompensate six-figure wage earners. These same facts play out in other industries as well such as cable, construction and drivers offering rides to the public.

Workforce: What is your guiding mantra, or philosophy, when defending an employer against a wage and hour complaint?

Idalski: If my client’s practices are legally compliant with the FLSA and/or state wage laws, I encourage them not to settle but to fight and win. When they do, they rarely are sued again, and in the long run it is the best financial decision. Further, it helps the industry and other companies because positive precedent is established that supports their business model. Companies who are innocent and settle because they worry about defense costs oftentimes double or triple their litigation expenses because they are deemed an easy target by plaintiffs’ lawyers. This is not to say that an innocent company should never settle because sometimes it makes sense depending upon their business. More often than not, settling negatively impacts companies.

Workforce: What compliance trends should employers expect to see under Labor Secretary Marty Walsh?

Idalski: Unfortunately, Marty Walsh and the Biden administration are not proponents of independent contractor status and favor the employer-employee relationship. Highly compensated workers will suffer with this approach as they stand to benefit from the tax advantages and flexibility of their independent contractor status. And we can expect the DOL to be focused more on enforcement and penalties and less on guidance. Liquidated damages will almost certainly be automatic if the DOL finds violations.

Workforce: Besides the independent contractors issue, in your crystal ball, what other employment law trends should employers be aware of over the next four years?

Idalski: Employers should be prepared for COVID-related litigation, especially during the next 12 months. This litigation may well include allegations by employees that the employer did not create a safe working environment by requiring and policing  the wearing of masks which resulted in the employee contracting COVID and post-COVID related illnesses.  Employers who do require vaccinations or reward employees who are vaccinated over employees who are not vaccinated could face discrimination claims.  Finally, given social pressures and issues facing the nation, employers should be prepared for an increase in Title VII race and retaliation claims. To avoid this risk, employers should re-examine diversity training and enforcing positive and accepting working relationships among employees and management.

Book a demo today to see how to build schedules, manage labor costs and ensure labor compliance with Workforce.com’s No. 1 employee scheduling software.