After months of anticipation, the U.S. Department of Laborwithdrew its Independent Contractor Final Rule on May 5.
The Final Rule was published in the final two weeks of the Trump administration. Almost immediately following President Joe Biden’s inauguration, it became the subject of a delayed effective date (from March 8, 2021, to May 7, 2021) andnotice of proposed rulemaking, in which the Labor Department proposed to withdraw the Final Rule before its delayed effective date.
In light of theLabor Department’s withdrawal of the Final Rule, employers will continue to be subject to the existing “economic realities” standard applied by the agency for determining whether a worker is an employee or an independent contractor. However, employers should remain vigilant as the Labor Department may soon revisit this issue.
The Final Rule had sought to clarify the relevant factors the Labor Department would consider to classify workers as independent contractors or employees. This designation is important because independent contractors, unlike employees, are not afforded minimum wage and overtime protections under the Fair Labor Standards Act.
Because the FLSA provides minimal guidance to employers regarding worker classification, the Labor Department and the courts have developed their own standards, including the so-called “economic reality” of the relationship between the employer and the worker.
Before the Final Rule, the Labor Department and most courts had long utilized a six-factor test for determining whether a worker should be classified as an independent contractor or an employee. The Supreme Court originally set out this test in United States v. Silk, indicating the following factors:
The employer’s versus the individual’s degree of control over the work.
The individual’s opportunity for profit or loss.
The individual’s investment in facilities and equipment.
The permanency of the relationship between the parties.
The skill or expertise required by the individual.
Whether the work is part of an integrated unit of production.
Since the Silk ruling, most federal courts and the Labor Department analyzed employee classification using a variation of the multifactor weighing test with all factors being given equal consideration. Indeed, in its primary regulatory guidance issued in July 2008, the Labor Department confirmed inFact Sheet 13: Employment Relationship Under the Fair Labor Standards Actits reliance on the economic reality test and listed seven factors to be considered, which largely mirrored the six factors identified in Silk and added the “amount of initiative, judgment, or foresight in open market competition with others required for the success of the claimed independent contractor” as an additional factor to be considered.
Breaking with the Labor Department’s prior practice of treating these seven factors as equally weighted, the Final Rule sought to pare the inquiry down to five factors and stated that two of those factors — the “nature and digress of the individual’s control over the work” and “the individual’s opportunity for profit or loss” — should be “afforded greater weight.”
As such, the Final Rule directed that only if the two core factors were inconclusive should the three remaining factors — namely, the skill or expertise required by the individual; the permanency of the relationship between the parties; and whether the work is part of an integrated unit of production — be considered.
Although many praised the Final Rule for simplifying what has become an inconsistent patchwork of approaches to the economic realities test in courts across the country, the Labor Department has since stated that the Final Rule was inconsistent with the FLSA’s text and purpose, and would have a confusing and disruptive effect on workers and businesses alike due to its departure from longstanding judicial precedent. Accordingly, the agency announced May 5 that the Final Rule was withdrawn effective immediately.
The Labor Department has not stated whether it intends to issue new guidance or regulations addressing the classification of independent contractors. Further complicating this issue for employers, both the initial delay of the Final Rule and its subsequent withdrawal are the subjects of a lawsuit pending in the U.S. District Court for the Eastern District of Texas brought by four employer-focused interest groups who seek the court’s intervention to declare the withdrawal unlawful and make the Final Rule effective.
The lawsuit is in its initial stages, and it remains to be seen how it will be resolved.
For the time being, all Labor Department regulations and guidance concerning independent contractor classification in place before the Final Rule’s publication continue to apply. However, given recent remarks by President Biden andU.S. Secretary of Labor Marty Walsh, the Labor Department may revisit the independent contractor standard.
If that occurs, it is expected that the Labor Department would take a more aggressive approach toward enforcement of worker classification laws and seek to further narrow the subset of workers who may be properly classified as independent contractors under the FLSA, particularly gig economy workers.
Notwithstanding the pending legal challenge to the withdrawal of the Final Rule, employers would be wise to evaluate their practices as to classification of employees and ensure that any independent contractors are properly classified under the Labor Department’s current 2008 guidance.
FIS Holdings LLC, a pipeline inspection company based in Sand Springs, Oklahoma, was fined $3,852,968 after violating overtime requirements of the Fair Labor Standards Act for 1,100 of its employees, a Labor Department investigation discovered.
The oil and gas industry depends on independent inspection companies like FIS Holdings to protect this essential infrastructure. The employees, who work in 40 states ranging from Massachusetts to California and Idaho to Alabama, keep more than 2.6 million miles of pipe in the U.S. secure, the Labor Department said in an April statement.
Investigators discovered that the company, which does business as Frontier Integrity Solutions Operations LLC and operates in the U.S. and Canada, paid workers a fixed amount per day, regardless of the number of hours that they worked. The practice resulted in violations when employees worked more than 40 hours in a workweek, but the employer failed to track those hours or pay workers overtime.
The employees typically worked between 50 and 60 hours per week. The employer’s failure to keep records of the number of hours employees worked also resulted in recordkeeping violations, the Labor Department release stated.
Kate Bischoff, an employment attorney at tHRive Law & Consulting LLC, said that managing employees’ time and attendance across multiple states shouldn’t necessarily complicate the process. The employer wasn’t following federal law for tracking time and paying overtime, she said. And that responsibility cuts across the entire organization, not just a single department like human resources or payroll.
“Everyone needs to play a part in compliance,” Bischoff said. “Frontline managers are important to get accurate time records from each employee. Payroll needs to verify, compile data including deductions, and ensure pay stubs are accurate. And, HR needs to make sure everyone has the tools and knowledge to do their jobs accurately.”
Many employers are looking for ways to make payroll as easy as possible, including paying fixed rates to non-exempt employees, misclassifying workers as independent contractors, and not requiring employees conduct paperwork when their actual work is dangerous, Bischoff said.
Bischoff pointed out that the investigation wasn’t handled by one office and one investigator but was a much bigger effort by multiple field offices to get the outcome for FIS employees.
Bischoff said it’s clear that the Labor Department is focusing on enforcement over guidance.
“The Biden administration’s Department of Labor underSecretary Walshis going to focus on enforcement as a major motivator for employers to get their wage and hour houses in order,” she said.
Bischoff advised employers to talk with their attorneys and their technology vendors to ensurecompliance before a Labor Department investigator comes knocking.
“The Department of Labor’s focus on enforcement is designed to be a deterrent for all employers to motivate them to comply with the law,” she said. “Work with an attorney to really focus on making sure your I’s are dotted and T’s are crossed on wage and hour issues.”
Planning work schedules for employees can be a time-consuming process. Planning schedules for hourly workers can be even more frustrating, like trying to solve a never-ending jigsaw puzzle in which the pieces are constantly changing. It doesn’t have to be so bad. If hourly schedules are the bane of your life, follow these suggestions to make them less of a chore.
What to consider before work schedule planning
As with any complex process, don’t just jump in and start filling in shifts. The more time and energy you devote to preparation, the smoother the end process becomes.
Monitor and map your demand
You’d be shocked how many businesses fail to take into account the basic need to track customer demand when work schedule planning for your hourly employees. Step back and take stock of how your business works on a day-to-day, week-by-week, and month-by-month basis, and let that guide your planning. What are your busiest and quietest periods? Are you in a sector where demand is seasonal? These aren’t questions to be asked once, but something you should query regularly. Patterns change, and it’s all too easy to find yourself overstaffed or understaffed because you didn’t notice in time.
Use past performance to predict your staffing needs
There are several ways you can predict your future staffing requirements based on past performance.
Staffing Ratio: Looking at your typical staffing ratio can offer a rough guide to working out how many new hires are needed and in which areas. For example, if you generally have 10 workers to every manager, then deviations can tell you if you need more managers, less staff, or some other variation.
Statistical Regression: For businesses where income is closely tied to staffing, such as call centers, using a statistical regression model allows you to track when your most profitable periods were and see what the staff levels were for those periods, helping you find the most efficient size for your workforce.
The Delphi Method: For larger companies, this approach involves convening a panel of senior managers and external consultants to pool their insights and offer a roadmap for future staffing needs.
If all of this sounds intimidating, or if you have a new or small business where such data is limited, don’t worry. There are workforce management tools that can automatically provide this analysis for you.
Prepare a clear and concise paid time off policy
You can head off many work schedule planning issues early on by making sure your paid time off (PTO) policy is robust, clear, and up to date. Employees who know what time they are entitled to are empowered to make meaningful decisions about their schedule.
Your PTO policy should include details on the following:
The types of time off covered: Sick leave, vacations, personal/bereavement days, national holidays.
How PTO is accrued based on hours worked and how many days workers are eligible for.
How PTO can be used. For example, is it taken in units of an hour or less, or as full or half days?
How much notice is needed to book time off and are there any blackout periods during which time off cannot be taken, such as key retail periods.
The exact contents of a PTO policy will vary from one business to another. But as a rule of thumb, the Society for Human Resource Management says that most current policies offer between 15 and 20 days of PTO per year, plus any company-observed holidays.
Don’t assume that because you implement such a policy that workers will use it. A 2018 study for the Annual Review of Sociology revealed that many workers were afraid of repercussions to their job if they took full advantage of flexible working hours. It’s not enough to have more equitable scheduling; you have to reassure your employees that they should take advantage of it.
Your work schedule planning checklist
Once you have done your top-level preparation, you’re ready to start work schedule planning for your hourly workers. Use this checklist to make sure you don’t overlook anything important.
Identify your needs. You’ve already laid the groundwork for this in the preparation process above. It’s the basic question at the heart of all workplace schedules: How many people do you need where and when? Don’t be tempted to guess. The Workforce Business Intelligence Board’s 2020 HR State of the Industry Survey found that only 21.1 percent of organizations have used workforce analytics.
Choose the right people. Employees aren’t generic widgets used to plug gaps. The more you know about your employees’ strengths and experience, the greater your ability to not just drop them into a schedule but plan well-balanced shifts that run smoothly.
Cross-reference your resources. Scheduling isn’t just about people; it’s about making sure they have what they need when they need it. For example, when are deliveries made? Who signs them in? Who moves the stock and how? Miss this step and your schedule falls apart when staff members have to leave one task to deal with another.
Check against safety regulations. Don’t assume this is only an issue for construction workers and similar manual jobs. Even a low-risk workplace should have trained first aid personnel on each shift. Check the OSHA guidelines to see how many you need.
Fill out the shifts. An obvious step, but one that still requires strategic thought. You can take a top-down approach in which the manager sets the schedule, or a bottom-up process in which employees can request open shifts. Workers who have more control over their working life are happier and more loyal. So, if your business model allows it, a hybrid of the two will likely yield best results. Let Workforce’s analytics guide you. Working in the dark on staffing management makes for bad business.
Be prepared. No-shows and last-minute changes will happen. It’s frustrating, but you can minimize disruption by keeping a standby list of dependable part-time workers or employees looking for overtime to deal with these problems. Always do so in consultation and with prior agreement with these workers—nobody wants to have their evening plans ruined by a demand to come into work, and it may even be illegal to do so.
Evaluate, evaluate, evaluate. Whenever the natural break in your shift cycle falls, audit the performance of your scheduling over that period. Are there still crunch points with not enough staff or regular periods of over-staffing? Scheduling is not the sort of job that is ever finished. It will always be in flux to some degree, so use a tool like Workforce to automatically collate the data you need to make informed choices.
Communicate. Encourage an open dialogue with your hourly workers. Is the system working for them as well? There may be mutually beneficial changes that are invisible from a management perspective. You don’t have to cede control of how the business is run, but giving employees more say in their working hours is a great way to cut down on the churn of shift staff.
Follow these steps and you’ll find that work schedule planning, even for hourly workers, is a much more manageable task.
Why legal compliance is key to successful work schedule planning
Smart scheduling is important for more than just your immediate business needs. There are swathes of legislation regarding how and when people work. The good news is that following these laws should mean staff stay with you longer and are more productive when they’re on the clock.
The Fair Labor Standards Act (FLSA) pertains to hourly workers, which means that pay for hours worked must add up to the minimum wage for your company to be legally compliant. Always check your local state laws in this area, as currently 29 states have a minimum wage higher than the federal minimum wage.
Non-compliance naturally comes with stiff penalties, so understanding and following the law is vital. Wading through the details can be hard, and details can be missed, so using employee scheduling software that automatically checks your schedules against national and local labor laws will give you peace of mind.
There’s one more thing you will need to be aware of when work schedule planning for hourly workers in sectors like retail and hospitality. You may see it referred to as predictive scheduling or “fair work week.” But over the past six years, multiple cities and states have enacted legislation aimed at reducing exploitation of people with practices such as “clopening.”
“Clopening” laws give your employees breathing room
When an employee is the last to close up at night and is also the first on shift the following day to open up, that’s clopening. It leads to stress, burnout, and high staff turnover. Under “fair work week” laws, businesses must adhere to minimum periods between shifts. In Philadelphia, for example, you must allow at least nine hours between shifts. But in Seattle, it is 10 hours, and in New York, the limit is 11 hours.
Predictive scheduling gives employees visibility on their upcoming workload
These laws also make it a legal requirement to use predictive scheduling, which means setting shifts for hourly employees at least two weeks in advance so that workers can better plan childcare and other quality of life essentials. So far, the states and cities that have enacted laws are San Francisco, Emeryville, and San Jose in California; Oregon; Seattle; Philadelphia; New York City; Chicago; and the District of Columbia. More predictive scheduling legislation will follow, so make sure you are up to speed on the rules specific to your location, as there are regional variations.
Slip up on a small detail, and you could face a big penalty. Seattle, for instance, has a $500 minimum penalty applicable on a per-employee and per-violation basis. Make a mistake that impacts 10 employees, and you’re looking at a five-figure fine. That’s why Workforce provides a labor compliance solution with up-to-date regional templates for workplace legislation, automatically checking that your schedules comply with the latest rules wherever you are.
When it comes to work schedule planning, expect the unexpected
Hourly work schedules may seem chaotic and prone to sudden change, but staffing management doesn’t need to be a headache. By accepting things will change and having a firm but flexible framework for the planning process, you can head off problems before they arise. Workforce can automate the most time-intensive parts of the process and make sure you follow the law in the process. The benefits to your business of a coherent and reliable scheduling system are higher productivity, greater worker retention, and better morale. And, of course, less stress for you.
The rule is simple, HIPAA protects EVERY American from disclosing ANY of their health records to ANYONE.
Their point? That medical privacy laws protect their vaccination status, and it’s illegal for any business to ask as a condition of anything.
They are very, very wrong. So, I thought today I’d clear up some common misconceptions about HIPAA specifically and medical privacy more generally.
HIPAA stands for the Health Insurance Portability and Accountability Act. It’s HIPAA. Not HIPPA, HIPPO, or anything else.
Broadly speaking, HIPAA does protect the privacy of individuals’ medical information. But not all medical information and only in certain circumstances.
HIPAA applies only to “covered entities,” defined as: (1) health plans; (2) healthcare clearinghouses; (3) healthcare providers that electronically transmit certain health information; and certain “business associates” of covered entities. If an employer does not fall into one of those categories, HIPAA does not apply to it at all. Thus, HIPAA does not apply to employee health information collected or maintained by an employer in its role as an employee’s employer.
For employees, HIPAA does not:
Prohibit an employer from asking for a doctor’s note related to an absence (or, in the case of COVID-19, an employee’s vaccination status).
Impact the ability to request information necessary to administer programs, such as health care benefits, workers’ comp, or sick leave.
Protect all health data maintained in employment records, only those employees’ medical and health plan records that relate to their participation as a member of the employer’s healthcare plan.
For businesses dealing with the public (such as a retail store or restaurant, for example), HIPAA simply does not apply at all. HIPAA does not prohibit a business from asking a customer about his or her vaccination status as a condition to entry or donning a mask upon entry. Period. Hard stop.
An employer that merely asks its employees for proof of vaccination status does not violate other laws, such as the Americans with Disabilities Act. The ADA does place limits on an employer’s disability-related inquiries of its employees. But, as the EEOC has clearly and succinctly stated, “requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry.”
The bottom line is that private businesses absolutely can require employees to provide vaccination status as a condition of employment (subject to certain reasonable accommodation obligations), and further a business can require the same as a condition to entry.
A business can’t force anyone to provide that information, it can legally deny access to anyone who won’t or can’t provide it. We all have a choice to make — to vax or not to vax. It’s really this simple. If you don’t want to wear a mask, get vaccinated. If you don’t want to get vaccinated, wear a mask.
If you don’t want to do either, then accept that there are places you won’t be able to go for now and for the foreseeable future.
Cristian Grossman may be a newly minted author with the recent release of his first book, “The Rise of the Frontline Worker: How to Turn Your Frontline Workforce Into Your Biggest Competitive Advantage.”
But the co-founder and CEO ofBeekeeper, a mobile collaboration platform, also has toiled as a frontline worker. A former waiter, factory worker and chemical engineer, Grossmann meshes his time in the trenches with his entrepreneurial savvy to argue that technology is imperative to making frontline workers more effective employees.
From health care to manufacturing to retail employees, Grossmann deftly addresses the importance of frontline workers. Since the pandemic began, millions of North America’s frontline workers found themselves in the spotlight for the first time, with appreciation initiatives in almost every city. Despite the recognition, Grossmann argues that the reality is many frontline workers don’t have the support and tools they need to do their jobs.
Workforce caught up with Grossmann for an in-depth Q&A in the days leading up to his company’s “Frontline Future” virtual conference on May 6.
Workforce: Define a frontline worker.
Cristian Grossmann: Frontline workers are employees who do not sit at desks or work at computers. Their jobs are most often mobile, like sales associates, first responders, construction workers and restaurant servers. As their name implies, they are on the frontlines of their company, either in a customer-facing role or a hands-on role, like a production worker in a manufacturing facility.
What many people don’t realize is that frontline workers actually make up the vast majority of the world’s workforce. In the United States alone there are approximately50 million frontline workers. Worldwide there are about2.7 billion frontline workers, which is 80 percent of the world’s workforce.
Workforce: So, the book title — “The Rise of the Frontline Worker” — are you saying these employees have been overlooked and now employers are coming to understand how valuable they are?
Cristian Grossmann, author of “The Rise of the Frontline Worker”
Grossmann: Early into the pandemic, frontline workers were thrust into the public spotlight. Beneath their masks, they put on a brave face and continued providing the services that society needs to sustain itself and its people. Now, frontline workers are appropriately recognized as essential workers, because they are vital to our economy. In fact, according to the Department of Homeland Security, essential workers are now officially recognized as part of our critical infrastructure operations.
When office employees transitioned to remote work, many frontline teams continued to work onsite throughout the duration of the pandemic. Without these essential workers, many companies and industries would not have been able to operate. Hospitals are filled with frontline workers, as are grocery stores, manufacturing facilities and delivery services. These are the workers that society relies on most and the pandemic highlighted just how important they are.
When it comes to workplace technology, frontline workers have been underserved for a long time. Companies typically spend most of their IT budget on desk workers while frontline employees often rely on outdated, inefficient communication channels. Paycheck stuffers, break room bulletin boards and word of mouth are just a few examples of outdated communication channels many companies still use to reach their frontline employees.
Now, with the rise of the frontline worker in the public spotlight and advances in mobile collaboration technology, business leaders are stepping up and investing more into productivity and collaboration technology that will reach and connect their frontline teams.
Workforce: It seems like an overarching theme is, by enhancing frontline workers’ access to technology, employers can gain a competitive advantage. Is that accurate?
Grossmann: I believe that digitally empowering frontline employees will be one of the single most important competitive advantages for businesses in the new post-pandemic normal. A high-performing workforce can only be cultivated when every worker is included and digitally enabled. If a company is only connecting with a small portion of their workforce and not including their frontline teams, they’re missing out on a huge opportunity to improve the safety, agility and overall productivity of their business.
Access to cutting-edge workplace technology creates a frontline workforce that is more productive, collaborative and ultimately happier. A connected workforce experiences fewer on-the-job accidents, sees higher retention rates, and is more innovative. All of these factors ultimately improve the customer experience and the bottom line of the business.
Let’s consider the hotel industry. Almost every guest interaction customers have occurs with frontline workers — they are the de facto brand ambassadors of the business. The happier these employees are and the more empowered they are to do their jobs with the right collaboration tools and access to information, the better guest experience they will create.
When companies digitize their frontline workers they are boosting productivity, safety and agility of their workforce, which fuels their competitive advantage.
Workforce: How can digitalization bring out the best in frontline workers?
Grossmann: When companies invest in their employees, it helps build a more engaged, committed workforce and lays the groundwork for a more collaborative, productive company culture.
This cultural transformation brought about through digitalization happens for a few reasons. First, simply connecting with workers and getting their input and feedback not only dramatically improves morale, but it also makes their jobs easier. The average frontline worker spends three hours each week just searching for information they need to do their jobs.
With a mobile collaboration and productivity tool, they have all the information they need at their fingertips. It streamlines operations by making their day-to-day tasks and work lives easier. They become more productive and more engaged. According toGallup, a connected workforce leads to a 17 percent boost in productivity, 21 percent profitability increase and a 40 percent decrease in turnover.
And on a human level, just connecting workers to the company and to each other, creating space for team members to build social connections at work goes a long way in driving engagement and boosting morale.
Workforce: Talk about the technology divide that you’ve seen between desk-based workers and frontline workers.
Grossmann: Historically, companies have invested most of their technology budget in desk-based workers while not really knowing how to connect with the frontline. It’s created a digital divide within the workplace. While desk workers have access to IT systems, email, telephones and much more, frontline workers lack the digital identity that desk-based workers are used to. It favors one group by giving them a voice while frontline workers are left without a way to contribute and connect.
Companies often resort to adapting an existing platform in their tech stack designed for desk-based workers for their frontline teams. But frontline workers have their own set of unique needs that often require different technology solutions.
Workforce: Many organizations with hourly employees still use manual, paper-based processes like scheduling and onboarding. Why should they digitize?
Grossmann: COVID-19 has accelerated the need for unified productivity and collaboration tools and the process of digitization that comes with them. If there was ever a moment to invest in frontline worker enablement, this is it. Companies are realizing just how much more efficient they are when they digitalize workflows and empower their teams with mobile technology.
First, paper-based processes are inefficient and are more likely to lead to miscommunication, which costs small companies about$460,000 a year. What’s more, completing this paperwork is repetitive and time consuming for staff. Automating routine tasks can free up employees’ time to spend on value-add tasks.
For example, if HR used a digital platform to automate the onboarding process and digitize employee paperwork, they could then spend more time on high level initiatives like recruitment and retention. This is also true of shift management. With a digital tool,creating schedules and communicating changes with employees is streamlined through one hub.
Grossmann: At Beekeeper, we have actually seen HR departments initiate the digital transformation journey in their own organizations. However, no matter who gets the ball rolling, it’s critical that top leadership supports and invests in digital transformation to set the tone for the project. If the CEO is passionate about progress, then frontline workers will follow their lead and support it, too.
From automating the onboarding process to digitizing payroll, HR teams can dramatically benefit from productivity tools, too. We have one customer, a casino with over 600 workers, that saved nearly $100,000 by digitizing paper-based processes, including HR forms that once had to be filled out manually.
Workforce: So, I am a manager. We’ve just digitized our employee communications through a smartphone app. And I see my employee on the floor checking their phone instead of restocking the yogurt and sour cream. How should I react?
Grossmann: I realize that letting employees use their phones at work can be a sensitive subject. Objections such as: they’re too distracting; they negatively affect productivity; they just simply “don’t belong” at work. I get it. It can be tempting to throw your hands up and banish the use of cell phones at work once and for all.
But the truth is that a “no tolerance” take on cell phone policies may not be the best solution, except for highly sterile procedures or risky production processes. In the modern day workplace, cell phones are a needed resource to facilitate internal collaboration, especially for employees who don’t have computer access or a company email account and allow them to better serve customers
I believe that the benefits of allowing employees to use phones at work greatly outweigh the risks if implemented properly. The key to successfully allowing cell phones in the workplace lies in creating a clear BYOD policy and making sure everyone understands what’s expected of them. Proactively addressing the key concerns is the first step to creating a solution that fits your company’s needs. Don’t let fear of change cause your organization to miss out on all the advantages of mobile communication in the workplace.
Workforce: You make a really interesting point about employees taking communications into their own hands by using commercial products like WhatsApp or Facebook Messenger for workplace communications. Why is that wrong?
Grossmann: Aside from security concerns, another problem with using WhatsApp for workplace communication is that it can sometimes create more confusion and chaos for workers. Juggling multiple group chats, no user management, and unprofessional user names make managing business communication through WhatsApp very difficult.
All this confusion ultimately leads to unclear, disjointed and disconnected workplace communication. In the end, WhatsApp can hurt productivity more than it helps. If managers are spending 15 minutes of each shift trying to figure out which group chat the closing checklist was sent to, then it pretty much defeats the purpose.
Don’t get me wrong. WhatsApp is fine for social communication. But when it comes to business, workers need a robust, collaborative platform with features and capabilities (like integrations) that streamline workflows and communication and enable them to be more productive.
I like to compare social media apps to the Wild West: they’re unregulated, out of control, and carry potential security consequences for a business. Companies have no control over consumer-grade communication apps.
Workforce: Communicating with your employees through an app is all well and good. But with an hourly workforce, aren’t you treading on potential wage and hour or overtime violations if they are “on” 24/7?
Having access to employees around the clock does not mean they should be accessible and available to the company 24/7. With Beekeeper, employees can set the app to the “Do Not Disturb” mode that can also be linked to their shifts automatically and mute push notifications outside of work hours. This respects the free time of off-duty frontline workers and also reduces a company’s legal risks around wage and hour labor laws that can arise when contacting employees when they’re not working.
Fair play rules are also essential when it comes to integrating workplace technology. Employees must understand that they may only use employer-provided communication technology, such as an app, during work hours.
Workforce: While we’re on that subject, talk about avoiding potential compliance violations when you digitalize employee communications.
Grossmann: On top of labor laws and data security, each industry has regulatory agencies who have specific standards and rules for companies. For example, manufacturing and construction must comply with OSHA. Health departments and the FDA have rigorous laws that govern the restaurant industry. It’s a lot for companies to keep track of and a workplace platform can help make sure theystay compliant on all levels.
Another topic that must be considered when discussing employee communications compliance is privacy and how data is treated. GDPR, CCPA, and other regulations have clear guidelines on how personal data of employees must be handled. It’s crucial to have the proper certified systems in place to address this.
Workforce: You are the CEO of Beekeeper, but you’ve also spent considerable time as a frontline worker. Talk about your experiences, and how that helps you shape your company’s mission and goals.
Grossmann: Before I got into technology, I was actually a frontline worker myself. I was a factory worker, a waiter, and a chemical engineer. I started very early on learning how frontline industries work as one of my grandfathers worked in a copper factory and the other one in a paint production factory. Also, my father worked with a team of electricians and blacksmiths to produce and automate garage doors in Mexico City. I was fortunate to spend a lot of time with them learning how those businesses worked, and especially how crucial it was to have clear and simple systems in place — at that time many of their processes were all paper based! I draw on that perspective and experience to inform the ways we have been and continue to evolve and improve Beekeeper to support more frontline workers.
We serve some of the largest frontline-powered companies in the world and I also rely on what our customers want and need in a mobile productivity platform. We’re honored that companies rely on Beekeeper to support and connect their frontline workers.
From “happy birthday” to “have you clocked out?”share key updates, celebrate milestones and make everyone feel part of the team through Workforce Chat. Sign up for your demo today.
Companies can spend millions of dollars on campaigns promoting their brand each year. But aside from building connections with potential customers and nurturing relationships with existing ones, there’s another side of branding that businesses need to pay attention to — employee engagement and perception.
Kay Phelps, director of British workplace communications companyPR in HR, discussed the impact of employee engagement on a company’s brand and why authenticity is especially essential these days for elevating brand perceptions.
Good branding comes from within
When employees find purpose in their roles and feel valued, they can be a company’s greatest brand promoter. But if they are not heard or treated well, what they have to say can be detrimental to your brand image.
“Employees who are engaged are likely to spread positive thoughts around your brand — be it through word of mouth or social media,” Phelps said. Engaged employees are also likely to interact with their company’s social media pages, therefore boosting the reach and engagement of the brand via digital channels.
Kay Phelps, director, PR in HR.
Leaders also need to recognize that there are online platforms where employees can air out their experiences with the company, whether positive or negative. “Combine this with the potential for posts on social media, not only should employers be motivated to treat staff well for their wellbeing, but to protect their image too,” Phelps added.
According to a Glassdoor survey, 86 percent of employees and job seekers research company reviews and ratings to decide on where to apply for a job. Further, a negative reputation can cost a company as much as 10 percent more per hire.
Bad employee reviews not only hurt the perception of potential hires but can also discourage customers from doing business with a company.
“If staff feel that their employers genuinely support them and take their views into account, they’ll be more likely to go to them first with any problems instead of heading online to air their opinions,” said Phelps.
Customers are paying more attention to how brands are living up to their core values and treating their people. A Stackla report said that 86 percent of consumers say that authenticity is important when deciding what brands they like and support.
“After last year, people want to see that brands care about their people and their customers — not least in terms of diversity, equity and inclusion, wellbeing and health and safety,” Phelps said.
Phelps sees this as a huge opportunity for companies to be talking about their successful programs that promote employee welfare. However, she cautions about the dangers of claiming to have such initiatives without clear actions, “Companies should take action before talking about it in their comms. Your messaging can’t be ingenuine. It must reflect real action and support in these areas. Fail to do this and you’re likely to be called out by onlookers or your employees,” Phelps explained.
“Part of understanding why people want to associate with your brand is being able to recognize their struggles and when you do this, you can create targeted messaging that addresses pain points and provides solutions,” Phelps said of boosting brand awareness, and the same principle can also be applied to creating a better working environment for your employees.
According to Glassdoor, employee voice is three times more credible than the CEO when it comes to talking about working conditions in the company.
Phelps says that a reason for poor brand awareness is unclear messaging. Just like customers, employees tend to be disengaged when expectations for their role are unclear. When not addressed this leads to confusion and conflict, resulting in poor performance and worse, a bad company review.
The second reason is assuming knowledge on the part of the target audience. “Companies need to be able to get their messages across to the ordinary person in a clear and simple way. If a person is confused, they’ll simply turn off,” Phelps explained.
Just with managing the workforce, managers should not assume that their employees know it all. They need to lay out all essential information for their people to do their jobs well. Open lines of communication are a must for fostering a culture of trust in the workforce. Employees need to feel a certain sense of safety that allows them to raise questions and concerns without fear of being shut down.
Companies should prioritize enabling their employees to perform at their best. This means providing them with the right tools and platforms that will allow them to be more efficient. Tools that enable them to collaborate, make data-driven decisions, and just generally make admin work easier are essential to keeping them engaged.
What employees have to say about a company is just as crucial to what customers think about the brand — sometimes, even more. Employee engagement can resonate outside the organization and can either make or break your business. Given today’s business landscape, taking care of your employees is essentially protecting your brand image and bottom line.
Contractors have to follow a rigorous array of compliance requirements to do business with the federal government, or they risk losing their deals.
Private mail carriers contract with the federal government to help deliver mail across the nation. While they may have delivered parcels and letters on time, three Florida-based federal contractors failed to deliver all of their workers’ wages, which caught the attention of the U.S. Department of Labor.
Following its investigations, the Labor Department’s Wage and Hour Division determined that three mail haulers in northern and central Florida — Mercado Santiago Inc. in Middleburg, Copa Post Services LLC in Gainesville and M&M Superior Contracting LLC in Orlando — owed a total of $293,779 to 34 employees. All three employers violated requirements of the McNamara-O’Hara Service Contract Act, according to a Labor Department statement. The Act is a labor law that requires government to use its bargaining power to ensure fair wages for workers when it buys services from private contractors.
Substantial fines for wage and hour violations
Kate Bischoff, an employment attorney at tHRive Law & Consulting LLC, said it’s a sizable penalty in a wage and hour case.
“This averages out to about $8,700 per employee, which is no small amount,” Bischoff said. “Depending on the length of time the Wage and Hour Division was looking back, employees would have felt the absence of this amount. It would have been real to them.”
Division investigators found one employer, Mercado Santiago, failed to pay workers for all the hours that they worked, resulting in the contractor paying less than the prevailing wage rates required. They also said the employer failed to pay required health and welfare benefits for employees and failed to keep accurate time and payroll records. As a result, Mercado Santiago has paid $219,166 in back wages to 16 employees.
Bischoff said it’s unlikely that the pay issue was an oversight by Mercado Santiago.
“Over $13,000 in wages and benefits is significant,” she said. “While prevailing wages are tricky — so much attention to detail and coordination between workers, supervisors and managers — it would be hard not to notice the issue here. Plus, if certified payroll was checked regularly by the government’s contracting officer, it should have been easy to spot the issue.”
Investigators determined Copa Post Services also failed to pay required health and welfare benefits to workers. The employer has paid $25,848 in back wages to 10 employees, according to the Labor Department statement.
The division found M&M Superior Contracting failed to pay required prevailing wage rates. The employer also failed to pay required health and welfare benefits and holiday pay to workers, and failed to allow employees to accrue vacation time or vacation pay. The employer owes $48,765 in back wages to eight employees, according to the Labor Department statement.
“Prevailing wage laws provide a safety net for fair wages and benefits to workers on contracts providing services to the federal government. Enforcement of these laws protects the wages of American workers,” said Wage and Hour Division District Director Wildalí De Jesús in Orlando in the statement. “The Wage and Hour Division will remain vigilant in its work to ensure employees are paid in compliance with these laws, and that employers compete on a level playing field.”
In April 2013, the U.S. Postal Service awarded Mercado Santiago a contract to provide mail-hauling services in Duval, Clay and St. Johns counties. The contract expires in September 2022, the statement said. Copa Post Services hires employees to work at USPS locations delivering mail on SCA contracts in Alabama, Florida and Georgia. M&M Superior Contracting holds three separate SCA contracts to deliver mail for the USPS in Orlando.
Stricter wage and hour enforcement is coming
Bischoff predicted that under newLabor Secretary Martin Walsh, enforcement is going to ramp up, penalties will likely increase and the Labor Department may have a low tolerance for mistakes.
“It is more likely the department will go straight to litigation before seeking to settle a dispute,” Bischoff said.
This could also mean the Labor Department will seek more debarment as a penalty, she added. Debarment means an employer is prohibited from contracting with the government.
“For many, many contractors, debarment is an existential threat,” she said. “These employers were contracted to carry the mail. If they don’t have a contract with the USPS to carry mail, it is hard to imagine what they would do.”
To avoid wage and hour violations, Bischoff said employers need to act quickly to get wage and hour compliance in order.
“With possible changes to the overtime salary threshold, minimum wages and more enforcement action, there is never a dull moment for HR and payroll professionals,” Bischoff said.
It’s been four days since Brandon Hole returned to the Indianapolis FedEx facility at which he previously worked, and killed eight people.
I’ve previously written about how to spot an employee at risk for workplace violence. And while I’m not sure FedEx could have done anything to prevent what happened here, this tragedy nevertheless is a reminder of what employers need to do when they suspect an employee presents a risk of violence.
Here is my post from Feb. 18, 2019, following a workplace shooting in Aurora, Illinois.
Early Friday afternoon, Henry Pratt Co. informed one of its employees, Gary Martin, of his termination. Shortly thereafter, he opened fire with a .40-caliber Smith & Wesson, killing five of his co-workers and wounding five police officers. Martin himself was the sixth casualty, killed in a shootout with police.
After the news of this tragedy broke, reports surfaced of Martin’s history of violence — six prior arrests by the local police department for domestic violence, and a decades-old felony conviction for aggravated assault.
All of which begs the question, should this employer have known that Martin was prone to violence, and if so, should it have taken added measures in connection with his termination.
A criminal history of violent arrests and offenses is not necessarily a predictor of workplace violence. Still, there are certain warning signs for which an employer can look to help determine whether an employee is at risk for potential violence.
A chronic inability to get along with fellow employees
Mood swings and anger control issues
Expressions of paranoia or persecution. Being a “victim”
A history of problems with past jobs and and/or personal relationships
An inability to get beyond minor setbacks or disputes at work
A fascination with guns, weapons, or violent events
A sudden deterioration in work habits or personal grooming
Signs of stress, depression, or suicidal ideation
A major life problem, such as divorce or legal problems
If one more of these red flags surface, it is recommended that you refer this employee to an employee assistance program, for assessment and treatment.
If you are compelled to fire an employee who you think poses a risk of violence, it is recommended that you take further steps to mitigate against the risk of your termination transforming into a workplace tragedy.
Consider using a neutral manager or outside security consultant to carry out the termination.
If there is manager or supervisor who has been the object of threats or anger, that person should not be the person to conduct the termination.
Have security nearby—not in the same office, but close enough to hear signs of a problem and to act.
Do not take a break. There are numerous instances of an employee asking for a bathroom break or time to compose him- or herself, and using the break to retrieve weapons.
Wait until the end of the workday to terminate, if possible. This protects the dignity of the fired employee and minimizes the number of employees on hand should a situation escalate.
Minimize any reasons why the employee would have to revisit the workplace. Mail a check; have uncollected belongings sent to the person’s home via a delivery service.
Allow the person as much dignity as possible, but be brief and to the point. Do not get into a back and forth.
Emphasize any severance benefits and outsourcing help that may be available. Some organizations decide they will not contest unemployment or offer the option of resigning.
As with most issues in the workplace, the proverbial ounce of prevention really matters. While there exists no foolproof way to protect your workplace against these kinds of tragedies, a few preventative steps can go a long way to putting you in the best place to deter and respond.
The Department of Labor’s breakup with liquidated damages in wage and hour investigations lasted only four years.
Late last week, the agency announced that it would again seek liquidated damages (an amount equal to the unpaid wages themselves) in investigations, undoing a policy change made by the Trump administration.
According to the DOL, it will “return to pursuing liquidated damages from employers … in its pre-litigation investigations provided that the Regional Solicitor of Labor or their designee concurs with the liquidated damages request. … Liquidated damages shall not be assessed by WHD where the employer has set forth credible evidence of a good faith defense or the where the RSOL deems the matter inappropriate for litigation.”
What does this mean for your business? You have twice the financial stake in getting your wage and hour house in order as soon as possible.
If the DOL investigates, you should expect to pay double what you would have in the past four years. Your $X in unpaid wages will take $X*2 to settle with the DOL.
If your only defense to these liquidated damages is “credible evidence of good faith,” you better take steps to create that good faith now, such as by having your employment lawyer sign off on how you classify and pay your employees.
I haven’t taken a proper vacation in 25 months. We were supposed to go to Portugal last March, but then COVID-19 happened. In the 13 months since, there’s been little point in taking off from work for any length of time because I haven’t been able to go anywhere. “I can’t go anywhere, so I might as well work,” has been a popular pandemic refrain (me included).
Americans were bad at vacations before COVID. The pandemic certainly hasn’t helped our PTO hesitancy.
Americans are good at lots of different things, but going on vacation is not one of them.… Guess which industrialized country is the only one that doesn’t guarantee time off to its workers? Guess which country left 768 million vacation days on the table in 2018?
The pandemic has not been great for America’s vacation malaise. When there are few new places to go and few new things to do, what’s the point of asking for time off? Yes, many Americans who have made it through without losing their jobs have taken a break to discover nature or their apartment balconies, but largely, we do not seem to be PTO-ing our way through this god-awful year. In February, time-off requests on the HR platform Zenefits were down 26 percent from the year before, a spokesperson told me, in line with what the company has seen since July.
I’m ending my vacation moratorium this summer with a week in a cabin in the Blue Ridge Mountains. I suggest that you strongly encourage your employees to do the same, lest you risk the burnout I warned about last week.
1. Teach your employees the benefits of taking a vacation. Make it a part of your wellness education. Communicate the health and wellness benefits of taking a vacation. If employees understand that vacations lead to improvements in performance productivity, they will be more likely to leave work behind for a few days.
2. Take your own time off. If the boss never takes a vacation, employees won’t either. If you want your employees to take time away from work, do so yourself. Leadership and messaging start at the top. If you make vacations a priority, your employees will, too.
3. Ease employee back to work. When asked why they don’t take time off, most employees historically cite the fear of returning to a backlog of work and thousands of emails to which to respond. COVID hasn’t helped, as fewer are away from work. Plan for coverage when employees are out, and provide a day upon their return for them to catch-up, so that they won’t fear the return-to-work ambush or avalanche.
4. Prohibit vacation shaming. No one should be permitted to discourage or tease employees who take a vacation. If you send or permit negative messages about vacations, your employees won’t take them. They will fear letting the team down, or the time-off impacting their employment. This form of bullying cannot and should not be tolerated.
