time and attendance – Page 2

May 18, 2021June 29, 2023

Predictive scheduling laws: What they cover and how to comply

Over the past five years, the United States has seen a wave of new predictive scheduling laws aimed at providing employees with more predictable work schedules.

These predictive scheduling laws are designed to provide stability to individuals so that they can attend to their child care, health, education and, in many cases, second jobs. Early predictive scheduling laws only applied to retail establishments and restaurants, with limited penalties and no private right of action (i.e. employees could not sue for violations of the law).

However, more recent predictive scheduling laws cover a much broader array of industries, with far more draconian penalties, and allow for employee-initiated class action litigation. While these laws are well intentioned, they do present significant challenges for employers in terms of staffing, costs, document retention and general compliance.

This is because the legislation is relatively new and varies by city. Moreover, these laws often require dramatic departures from historical hiring and scheduling practices. The result is a patchwork of new laws, with limited guiding precedent and substantial penalties for noncompliance. As an employer, you would do well to heed these laws and take appropriate steps to ensure you are compliant.

Where have predictive scheduling laws been passed?

Many jurisdictions have considered, or are considering, passing predictive scheduling laws. So far, two states — Vermont and Oregon — and eight municipalities — San Francisco, Berkeley, Emeryville, San Jose, Seattle, New York, Chicago and Philadelphia — have passed laws. The laws in these jurisdictions are similar but different enough to discourage larger employers from creating company-wide policies and procedures for national compliance. Looking at 2021 and beyond, that list is likely to grow. Connecticut, Illinois, Maine, Michigan, Minnesota, New Jersey, North Carolina and Rhode Island all have predictive scheduling laws or equivalents under consideration.

Though most laws require employers to pay their employees predictability pay when their schedules are changed without advance notice, many laws contain different requirements regarding the amount of predictability pay owed, as well as exceptions to predictability pay entitlement. Accordingly, the differences in predictive scheduling laws not only require different scheduling policies, they require tailored and distinct payroll practices as well. Failure to properly pay employees under predictability pay rules can create federal and state wage and hour exposure as well.

It is also worth noting that some states have gone in the opposite direction, prohibiting the use of predictive scheduling legislation. Since 2017 Tennessee, Georgia, Iowa and Arkansas have all made it illegal for local government to require employers to adopt scheduling or hiring practices other than those already required by federal law.

What do predictive scheduling laws require?

While predictive scheduling laws from many of the jurisdictions contain several nuanced differences, there are general requirements that are common to many of them.

Advance notice of work schedule, generally at least 14 days.
A written estimate of each employee’s anticipated work schedule (at the time of hire).
Predictability pay in the absence of sufficient advance notice of work schedule.
Exceptions to eligibility for predictability pay.
A right to rest requirement to prevent “clopening” (i.e. no employee should be required to close up at night and open up the next day), as well as amplified pay for close-in-time work shifts.
Offers of additional hours to current part-time employees before hiring a new employee.
Posting requirements.
Stringent documentation and document retention requirements. This generally includes work schedules, written scheduling estimates, documents evidencing predictability pay, and documents related to offers of additional hours.

Though not common, some jurisdictions, such as Seattle and Philadelphia, encouraged employers to engage in an “interactive process” with employees who request a modification to their work schedules. Notably, this idea of an “interactive scheduling process” is one that has endured and presents additional managerial burdens for employers.

How to comply with predictive scheduling law

Determine applicability. Employers operating in a jurisdiction with a predictive scheduling law in place should first determine whether they qualify as a “covered employer” under the applicable law. While many laws only apply to certain employers in the restaurant and retail industries, other laws have a more expansive definition of “covered employer.”
Create policies and forms. Once an employer determines that it is covered, it should develop policies and forms tailored to each applicable law. Sample forms that would be helpful to have on hand include, but are not limited to: a notice of change in work schedule, a notice of offer of additional hours, an estimate of work schedule and hours, and a template work schedule. Additionally, employers should consider maintaining working checklists that managers can use to ensure compliance.
Train managers. Once the policies and forms are prepared, employers should train their managers on the applicable laws, as they will largely be responsible for facilitating and documenting compliance.
Ensure proper data maintenance. Because compliance with predictive scheduling laws requires retention of a high volume of documents, employers should ensure they have proper mechanisms in place for storing documents and data.
Audit for compliance. In order to ensure compliance with any applicable predictive scheduling laws, employers should periodically conduct internal audits to ensure policies are being followed and documents retained.
Use technology to predict staffing needs. In order to avoid predictability pay, employers may want to use technology and data analytics provided by software such as Workforce.com to anticipate future staffing needs. Setting schedules based on reliable data may decrease the need for unanticipated scheduling changes and thus reduce the likelihood of predictability pay.

Predict staffing requirements — Workforce can track your wage costs against your income over time and automatically recommend
the best staff schedules based on predicted demand.

Predictive scheduling compliance doesn’t need to be a problem

If you run a business that is affected by predictive scheduling laws, or think that it may become a reality in your state soon, then it’s easy to look at these new requirements and only see the additional administrative burden. There are benefits to businesses, however.

Academic research has shown that employees with stable, predictable schedules are happier, healthier and more likely to stay with their employer for the long term. You can also mitigate many of the requirements of predictive scheduling by using labor compliance software from Workforce.com to manage your employees. Not only does it handle the collection and auditing of shift data, it can keep track of relevant labor legislation and automatically warn you if any of your workers’ shifts are in breach of the law wherever you operate. So don’t be afraid of predictive scheduling. It’s easier to comply with than you think, and can make your business run more smoothly.

November 22, 2020August 24, 2023

Automate and eliminate your company’s timesheet rounding practices

timeclock, wage and hour, schedule, timesheet rounding

Timesheet rounding is a common business practice that is perfectly legal.

According to one survey, 55 percent of employers utilize the process to simplify their payroll, typically rounding an employee’s logged hours in 15-minute increments.

Despite potential pitfalls for employers that could lead to costly lawsuits, timesheet rounding is a practice that appears to be entrenched in the payroll process. Automating it with digital time and attendance solutions can curb and even eliminate the need for timesheet rounding.

Also read: Build and send employee schedules in seconds

A workforce management solution also will go a long way to keep an employer safely in compliance while fairly compensating employees for the time they have worked.

Issues with timesheet rounding

Timesheet rounding only works when it’s done equitably for employers and employees. The Fair Labor Standards Act states that employers may round time if it averages out so that employees are fully compensated for the time they actually work.

Employers should be aware that timekeeping regulations vary from state to state. Employers also must ensure that their system is “free from bias” and that employees are paid for all time worked, which can be a tough sell in front of a labor law judge for companies using a paper-based system. An automated process will make for a much more convincing case.

Avoid guesswork and approximations

Most organizations that still round employee time round up or down to the nearest 15-minute mark on timesheets. Many businesses still use paper-based methods for time tracking, including punching time cards. Accurate logging becomes complicated, since your employees typically punch in at a designated location and then move to their actual workplace.

While having faith that your workers are honest and trustworthy is commendable, most of your employees are not experts in payroll practices. Allowing employees to manually enter their time on a time card or spreadsheet can lead to errors based on their time estimations, which also can slip past your payroll department.

As a result, you’re likely paying too much or dangerously too little in wages and overtime. And there is lost productivity with every pay period.

Automation helps control rounding estimates

With the technology and tools available today there is no need to play the rounding guessing game. Sure, the FLSA has mandates and rules in place for rounding. But investing in a proven automated online workforce management platform will conveniently track employee time to the exact minute and eliminate the need for rounding, which saves you in hours of overpaid minutes.

Also read: Tracking time and attendance a basic but crucial workplace function

Good timekeeping practices prompt compliance

A primary reason the Department of Labor keeps time rounding in place is because so many businesses still use manual processes to track their employees’ time. Yet the DOL can drop the hammer at any time and request an audit of your company’s timekeeping practices.

With the automated workforce management solutions and resources available to organizations, timesheet rounding shouldn’t be a preferred option. For businesses that are still rounding employee timesheets or permitting them to manually log their hours, take the time to take control of that cost. With the right workforce management platform, employers can accurately and effortlessly collect their employees’ time and attendance data without using the practice of timesheet rounding.

Pay your employees for every second of the hard work they do and have the peace of mind to know that you are in compliance with Workforce.com’s time and attendance solution.

October 30, 2020August 25, 2023

Tracking time and attendance a basic but crucial workplace function

time clock, workforce management, scheduling, time and attendance

There are some functions that are so elementary to an organization that without them, there is no business.

People need to show up for work. From the single-person hair salon to a 10,000-employee utility company, time and attendance is mandatory for a business to function at its most basic level. And those workers must spend a requisite amount of time to get the job done.

Digitally pairing the perfect couple

Like Abbott and Costello, salt and pepper and peas and carrots, some things just belong together. For employers, time and attendance and employee scheduling software are two workplace basics that fit hand in glove to make an organization go.

Also read: Timesheet rounding isn’t necessary with the right technology

Like many HR functions, tracking how long employees work each day has evolved from pen and paper to a digital process. Today’s time and attendance solutions reach far beyond a punch clock with employees merely clocking in and out. They typically provide employers with everything needed to track and manage all aspects of their employees’ time.

The value of time and attendance systems

These systems record when employees start and end their day, display their weekly schedules and provide a tool to manage time-off requests.

Also read: Knock out the practice of buddy punching for good

Employees can no longer round up the hours they’ve worked or buddy punch their co-workers in and out. Employees are held accountable for the hours they have worked. Many time and attendance systems will offer other values, including:

Payroll accuracy.
Simplify paid time off management.
Time and attendance mobility features.

Accurate pay

You want to track employee hours and streamline your payroll processes. But you’re stuck in a paper-based payroll system. Save ink and save a tree by taking payroll digital. Organizations typically want to adopt a time and attendance management system that can integrate with payroll systems, and it has never been easier to make sure all employees are paid accurately and on time. Digital time and attendance systems let supervisors expedite timesheet review and approval.

They can also quickly and easily track that the right person clocks in for the right shift through electronic photo verification and unique pass codes. These, along with payroll add-ons, lets employers do away with lengthy steps and potential errors in computing payroll.

Simplify paid time off management

Time and attendance software often allows employers to record paid time off — sick time, vacation time and other types of paid time off. In addition, employees can use the software to request time off,and managers can either approve or deny those requests. Workforce.com’s intuitive leave management system makes it easy to manage time off by automatically applying changes to schedules and timesheets.

Time and attendance mobility features

Perhaps most importantly, employees have the ability to clock in and out from their mobile devices. A mobile time clock app automates how the staff clocks in while improving the accuracy and efficiency for every manager. Every internet-connected device essentially becomes a time clock. No one has to touch a communal device or handle paper time cards. Spreadsheets and calculators are no longer necessary since a mobile solution streamlines cumbersome administrative tasks. More than a time clock in their pocket, the multi-tool mobile app lets employees use their phones to clock in and out and allows managers to monitor in real time where and when the punch in or punch out occurs.

Time and attendance and employee scheduling software systems offer a huge benefit to your employees as well as their managers. They simplify an employee’s time-keeping responsibilities via clock in using a computer or mobile device.

Investing in digital time and attendance also benefits a business in many ways. Having a system to accurately track an employee’s time simply saves money. It eliminates manual recordkeeping, which reduces errors and more readily demonstrates compliance with labor laws and other regulations.

Simplicity is a key component to efficiency. Make your time and attendance process seamless for employees, and allow your managers to be more effective and focus on the needs of the organization.

September 23, 2020June 29, 2023

Time and attendance management implementation is about more than just punching a clock

scheduling; time and attendance; forecasting

Your time and attendance system does a vital job for the organization, keeping track of hours and saving managers time to do work that can’t be automated. But with so many software options to choose from, picking the right time and attendance management system for your organization can be complicated.

An HR technology expert spoke about what organizations should consider as they shop for a new time and attendance system.

Set guiding principles around time and attendance

Organizations must decide on these guiding principles before they seek out potential time and attendance management solutions, said Will Manuel, partner in Mercer’s Digital Practice. Questions to consider include:

Do we want to use one system for everything?
Do we want to use a system that can integrate with other HR or payroll software?
Do we want to allow mobile or something that can only be accessed onsite?

Further, an organization must understand what makes it unique, Manuel said. Its geography, industry, employee composition and unique business needs will determine what kind of time and attendance system and features will be the best fit. Time and attendance is a functional area of workforce management that varies much more depending on these factors than other areas of human capital management like performance management, he added.

The employee composition aspect is important because full-time salaried employees generally have different leave and vacation policies than hourly employees, he added. A time and attendance system must be able to account for the types of employees an organization has and the types of leave they have access to.

Also read: Leave management should be as simple as submit, approve and hit the beach

Manuel also suggested that organizations should decide where the time will be calculated. Will it be in the time and attendance system or will it be simply recorded in that system and then calculated through the integrated payroll software?

“For the hourly population, it becomes a lot more complicated, because you’re calculating it by hourly rates, which may factor things like overtime. The complexity of the calculator sometimes goes beyond the basic time and attendance system,” he said.

Integrate when possible

Organizations generally want to adopt a time and attendance management system that can integrate with payroll systems, Manuel said. This allows the company to access much more robust data and analytics. Also, “you can make much more informed decisions around productivity measures and cost of labor when they are integrated into more of a single system,” he said.

Also read: A technology integration is an intervention to dissolve common payroll errors

“That doesn’t doesn’t mean data cannot be fed from a standalone time and attendance system into an HCM system, which would be able to provide that more robust set of data, analytics and reporting. It just should not be assumed that can happen,” he added. “You have to understand what is the time system and its capabilities, and what is the HR or payroll system and its capabilities.”

As a guiding principle, one system that meets an organization’s requirements is better than using two systems, he said. But what it ultimately comes down to is the company’s unique use cases and if a single system can handle everything that is needed to support the business. Sometimes, multiple standalone systems will fit these needs better.

Growing trends in time and attendance

Labor forecasting is the major trend to keep an eye on in time and attendance management, Manual said. It helps guide managers by providing actionable insights on how to improve their scheduling.

There are also solutions that have come out to minimize flukes like payroll leakage and buddy punching, he added. “But it’s really the reporting and analytics that is what’s helping to differentiate the best in breed,” he said.

Look to your future needs, not just your present ones

One mistake organizations make when picking out a new software system is only considering their present needs, Manuel said. “They also need to look at where they think their workforce composition is going to be and what they may need three or five years down the road from now.”

The norm for time and attendance systems may change in the next few years, he added. Looking forward allows organizations to “see the picture beyond time and attendance and more the employee experience and what the [system] needs to support the business.”

The simple question to ask is, “Will my workforce composition be the same as today in three to five years?” If the answer is that it will look different, organizations should consider the ramifications of choosing the time and attendance system they chose.

The risks of picking a system that can’t adapt to your unique needs

Again, organizations should understand what makes them unique, and the right time and attendance system will be able to address these needs. It helps ensure there are no surprises, Manuel said.

“I’ve unfortunately seen it too often where something is selected, but it can’t configure to the handful of complex rules. And therefore [the organization] has to change the business to fit the time system as opposed to the time system supporting the business,” he added.

He gave the example of XYZ unions, for which there are a number of complex calculations based on factors like how long an employee has worked, what union they belong to and what their hourly rate is. Also, they may be working different shifts and have varying rates.

“Calculations can be pretty complex for certain groups, and you need to make sure that if you’ve got complex calculations, the system can handle it,” he said. “Don’t just assume that the system can handle it because somebody said it could. Assume that the system can handle it because somebody showed you it could handle it. Rely on ‘show me,’ not ‘tell me.’ ”

August 2, 2020August 10, 2020

Passion for getting it right: Spyder Surf’s secret to workforce success

“I fell into the role. I had no idea that I was going to end up in retail for the last 20, almost 30 years now,” said competitive surfer and Spyder Surf managing partner Dickie O’Reilly.

Founded by Dennis Jarvis in 1983, Spyder Surf has been a Los Angeles area mainstay ever since. And it has had no problem keeping up with the trends either, releasing new board models to fit all kinds of needs. O’Reilly has been with the brand from the start, seeing it grow from one small retail space to two Los Angeles locations.

Spyder Surf’s flagship store on Pacific Coast Highway used to be an 850-square-foot space. Today it boasts 7,000-square-feet of signature surfboards, wetsuits and other surfing gear. Likewise, Spyder II in Hermosa Beach has been showcasing their products to millions of surfers since 1997. Maintaining a strong presence in this competitive industry can be quite a challenge. Spyder Surf’s secret? O’Reilly and his team know exactly what they’re doing.

Creating a brand, shaping a culture

Spyder Surf’s story began where all good stories do: the passion for getting it right. Jarvis began competitively surfing in the mid-1970s. As a professional surfer, he quickly learned that his equipment could be better.

Also read: Building a safety policy was vital to Shawmut Design and Construction’s health

He grew up practicing art, so he decided to make the equipment himself. Soon after, he began shaping boards for some of his best contemporaries. “I was shaping boards for competing surfers, and I was surfing against them. We were all friends,” Jarvis said in a 2015 interview.

Jarvis was more than a pioneer though; he was also O’Reilly’s mentor.

“Competing as a surfer myself and dabbling in a little bit of the Pro Junior contests, he was my sponsor and he was making me surfboards. And then you have me working at the store. I worked there through high school,” O’Reilly said. After he graduated from college, an opportunity opened up for him to manage the store. He has been growing the business ever since. “He’s a creative genius and [an] amazing craftsman. A bit of a mentor for me for sure.”

Innovating for Spyder Surf’s workforce

When O’Reilly is not out on the beach, he’s thinking of ways to operate more efficiently. As managing partner, among his duties are monitoring attendance and processing payroll.

But when the administrative work cost too much time and energy, Spyder Surf turned to Workforce.com.

“You know, the fact that you uploaded all of our employee data saved me a ton of time there,” O’Reilly said when asked about his experience. “What was a half a day for me starting out payroll is now an hour at most, and the Workforce.com side of it is about 15 minutes. So that alone frees up my time to do the other stuff that’s more important,” he added.

Workforce.com’s Employee Time Clock App is installed on Spyder Surf’s tablets, which allows them to monitor their stores.

“Love being able to log in from anywhere and see who’s there — exactly when they got there, when they came, when they left, when they took their break or didn’t take their break at the right time. I’ve never seen it before,” he said.

And because it also generates timesheets that can be exported to an existing payroll partner, they are able to pay employees accurately and on time, at a fraction of the effort.

Also read: Payroll challenges eased by software solutions

Riding the waves into bigger things

Spyder Surf is showing no signs of slowing down. The brand continues to evolve, from their product lines to the way they run their stores. O’Reilly looks forward to using more of Workforce.com’s features. “I’m excited about seeing the lifetime salaries and comparing it with our sales,” he said.

Moving forward, O’Reilly’s team is balancing growth with keeping their tight-knit work culture alive.

“We would love to keep growing, but we’ve got a small core group of really good people that have been with us for a long time too. It’s a family,” he said. If their progress so far is anything to go by, Spyder Surf is riding the waves into bigger things.

O’Reilly is keeping a level head, though. “We do it slow and we’re going to continue to do it slow and make sure we do it right.”

June 25, 2020June 29, 2023

Your time clock is better with GPS functionality

frontline workforce, Boost your managers’ effectiveness with an essential mobile clock-in tool

A manager’s effectiveness depends on many variables.

Support from company executives is critical. Possessing the know-how to hire and retain a reliable staff is another. And having the personal attributes to interact effectively with others — the so-called soft skills such as communication, positive attitude and leadership — are absolute musts for an effective manager.

Hard skills are equally as important, and employers can clearly boost managers’ effectiveness by equipping them with the right tools to successfully supervise their teams. Provide your managers with a mobile tool that boosts their ability to know in real time that all shifts will be covered, who is scheduled for what shift and when that employee clocks in.

Scheduling concerns are a thing of the past

Mobile time clock software automates how the staff clocks in and out while improving the accuracy and efficiency of every manager. Every internet-connected device essentially becomes a time clock. No one has to touch a communal device or handle paper time cards. Spreadsheets and calculators are no longer necessary since a mobile solution streamlines cumbersome administrative tasks.

A mobile solution will:

Free up managers’ time.
Simplify scheduling by tracking attendance, paid and unpaid breaks, and time off.
Ensure that every shift is covered without guesswork.
Assure the right person clocks in for the shift.
Allow staff to communicate with managers and each other.
Integrate with other tools to manage staff.
Eliminate bulky paperwork.

Target employees on the go

Your employees are checking their phones to pass the time. Whether at home or on the move, make their phones an essential work tool when it is equipped with a mobile time clock. From anywhere and at any time, a time clock app integrated with workforce management solutions authorizes your staff to check their schedule, communicate with a fellow employee about a shift swap or ask a manager for time off. More than a time clock in their pocket, the multi-tool mobile app lets employees use their phones to clock in and out and allows managers to monitor in real time where and when the punch in or punch out occurs.

Multipurpose mobile app

The best mobile clock in apps do more than merely track an employee’s work hours. Paired with a powerful scheduling tool, managers will simplify the time-consuming task of creating complicated rotating or overnight shifts. Timesheets created from clock ins can be auto-approved to relieve an overwhelmed business manager and improve an organization’s overall effectiveness.

Easing compliance concerns

Sloppy recordkeeping, inaccurate payroll and incoherent time-and-attendance protocols can quickly bog down an organization with costly, burdensome compliance issues. A paper timesheet system just can’t ease those stresses compared to a mobile clock in solution, which efficiently tidies the payroll process and saves trees by eliminating the need for unnecessary paperwork.

Managers also can be assured that the right person is clocking in for the right shift through electronic photo verification and unique passcodes. The nagging problem of buddy punching is a thing of the past with photo ID verification.

Since a mobile time clock app is so easy to use, employees are helping their bosses avoid costly wage-and-hour disputes, trim unnecessary overtime and eliminate embarrassing and expensive payroll corrections. Clocking in and out is simple, as employees use their own device to tap into the app to clock in and out.

Empower your managers

Soft skills may be hard to come by but hard skills are indispensable to a manager’s ability to supervise staff. Give your managers the tools they need to manage their employees and administer digital timesheets, payroll, budgeting and labor compliance reporting. A mobile time clock app gives your managers a powerful tool that makes employee supervision a breeze.

Empower your employees

Make clocking in and out, requesting absences, viewing current and past timesheets and communicating with one another while on the go a snap for your hard-working staff. With an intuitive, mobile-first user experience, employees will find the Workforce.com Time Clock mobile app easy to use without any training.

Start tracking their time today!

March 11, 2020June 29, 2023

6th Circuit Court gives employers relief on the evidence employees must present to prove off-the-clock work

The difficulty in defending certain wage-and-hour cases is that employers are often asked to prove a negative.

“I worked __ number of hours of overtime,” says the plaintiff employee. “Prove that I didn’t.”

If the hours are for unclocked work, the employer often lacks documentation to refute the employee’s story. Which, in turn, leads to a case of “I worked/no you didn’t.” That, in turn, creates a jury question, the risk of a trial, and a settlement (since very few employers want to risk paying the plaintiff’s attorneys’ fees if the employee wins).

In Viet v. Le, the 6th Circuit Court of Appeals provides employers much needed relief from these extorting lawsuits.

For several years, Quoc Viet worked for Copier Victor, owned by Victor Le. Le treated and paid Viet as a 1099 independent contractor. When their business relationship soured, however, Viet sued for unpaid overtime under the FLSA, claiming that he was an employee owed overtime. The only evidence Viet submitted in support of his unpaid overtime claim was his assertion that each week he worked “60 hours per week.”

The 6th Circuit concluded that without additional substantiation, the employer was entitled to summary judgment.

The district court correctly held that Viet’s testimony was too “equivocal, conclusory, and lacking in relevant detail” to create a genuine dispute of material fact under Rule 56. Begin with Viet’s estimate of his average weekly schedule. He claimed that he typically worked 60 hours per week.… Viet did not fill in his general 60-hour estimate with specific facts about his daily schedule. Without Viet’s general estimate, his deposition testimony would leave a jury simply guessing at the number of hours he worked in any given week.…

All told, Viet could withstand summary judgment only if we adopted a legal rule that conclusory estimates about an employee’s average workweek allow a rational jury to conclude that the employee worked overtime.…

Viet argues that Le and Copier Victor failed to identify evidence showing that he worked less than 40 hours per week. Yet Viet bears the burden to prove that he worked overtime during every week for which he seeks overtime pay.

What evidence about the number of hours an employee works will suffice to create a jury question? According to the Viet court, a coherent description of “their day-to-day work schedules or the time it takes to complete their duties so that a rational jury could find that they worked more than 40 hours in the weeks claimed.”

They do not need to “recall their schedules with perfect accuracy,” but they must do more than “simply turn a complaint’s conclusory allegations about overtime work into an affidavit’s conclusory testimony about overtime work and expect to get a jury trial.”

A common-sense solution for a difficult issue. Go forth and litigate; Viet will provide much-needed assistance in FLSA cases.

February 18, 2020June 29, 2023

Court concludes employer should have advised injured employee of FMLA rights even after going AWOL

Buddy Phillips injured his ribs while playing with his grandchildren.

Over the next two weeks, he called his employer, United Trailers, to report he would miss work. Eventually, however, he stopped making these phone calls. When he failed to show up at work for three straight days without giving notice, United fired him under its attendance and reporting-off policy.

He sued, claiming that United interfered with his rights under the FMLA by failing to advise him of his rights under the statute after it had notice of his serious health condition but before he went AWOL.

In Phillips v. United Trailers, the 7th Circuit Court of Appeals held that in this instance, the employee’s FMLA rights trumped the employer’s attendance and reporting policy.

Even if Phillips failed to comply with the FMLA by failing to report his absences, he did so after United would have violated the FMLA. Phillips stopped calling in to work at least nine business days after he first reported his rib injury to United. Under the regulations, United had five business days after receiving notice of Phillips’s rib injury to determine whether he qualified for FMLA leave.

In other words, an employer cannot rely on its attendance and reporting-off policy to terminate an AWOL employee if the employer is already on notice that an FMLA-qualifying event might be the cause of the employee’s unreported absences.

So what should an employer do in this situation, when an employee might have triggered the FMLA’s protections? The FMLA’s regulations offer some guidance.

1. If the need for leave is foreseeable to the employee, it’s a much easier issue. The employee must give 30 days notice, which gives the employer and the employee more than enough time to work out their leave and attendance issues.
2. If the need for leave is unforeseeable, however, the employee must provide notice of his intent to take leave to the employer as soon as practical under the circumstances. That notice must “provide sufficient information for an employer to reasonably determine whether the FMLA may apply to the leave request.” Critically, an employee “need not expressly assert rights under the FMLA or even mention the FMLA, but may only state that leave is needed.”
3. The burden then shifts to the employer. The employer must decide whether to designate the request for leave as FMLA-qualifying. Its decision to designate FMLA leave “must be based only on information received from the employee.” If the employer lacks information about the reason for an employee’s request for leave, the employer should inquire further of the employee to determine whether leave is potentially FMLA-qualifying. The employer should not, however, bury its head in the sand and ignore the employee, because if the leave turns out to be FMLA-covered, the employer will have a big legal problem. Just ask United Trailers.
4. Importantly, the employer only has five business days to notify the employee whether leave will be designated as FMLA-qualifying, absent extenuating circumstances.
5. Throughout this back-and-forth time period, the employee must comply with the employer’s “usual and customary notice and procedural requirements for requesting leave.” If the employee does not comply with the employer’s usual leave-request requirements, the employer is within its rights to deny or delay the FMLA leave. If, however, the employee provides notice and complies with the employer’s attendance policy, the employer’s failure to timely determine whether the employee’s leave counts as FMLA-qualifying may constitute an interference with the employee’s FMLA rights.

These are complicated issues that often do not have cut-and-dried answers and can carry seriously expensive consequences for an employer’s missteps. If an employee presents you with an injury- or illness-related absence that may or may not qualify for FMLA protections, your first call should be to your employment lawyer to make sure that you are handling this issue correctly under the FMLA’s maze of rules and regulations.

February 18, 2020June 29, 2023

Workforce time clocks keep punching away. Thanks, Coldplay

My stove and kitchen radio decided to simultaneously conduct a household appliance assault, which triggered a mini-obsession with clocks.

When I set the timer on my stove, the time of day on the clock disappeared, which for some reason bothered me to no end. Already irritated, the annoying Coldplay song “Clocks” blared from the radio.

Nice. Now I don’t know what time it is, and I have earworm like “It’s a Small World” or “Viva la Vida” (ugh; Coldplay again), bobbling around my noggin. But then, would “Rock Around the Clock” have changed anything? Jim Croce crooning “Time in a Bottle”? Maybe it was just my time. Or that time of day. Whenever, wherever, I guess.

Unfortunately my fixation carried over to the next morning.

As I walked past a city water department crew hovering over a trench laying a water main, my time-sensitive brain set me pondering: Do these guys queue up at the crack of dawn, pull their paper time card off of a wall-bound time card rack, punch in on an old-fashioned workforce time clock and then pop it back in the rack before trudging out to a company rig and rambling off to the job site?

As I scurried to catch the train I drifted back to a time when I punched in and out on a workforce time clock for my dad as a plumber’s apprentice and again two summers later on his buddy’s road construction crew.

I got to wondering … what companies still use time clocks? After all, we are in an age where technology makes clocking in and out just an app away on our phones. So naturally, to satisfy my clock-obsessed curiosity, I googled time clocks.

Also read: Solving the concern over clean time clocks with a mobile solution

Do workforce time clocks still exist? Boy howdy, do they!

I was pleased to discover that there are several companies that still manufacture and sell the old-style workforce time clocks. I was particularly taken by the story behind Lathem Time Corp. The Atlanta-based manufacturer recently celebrated its 100th anniversary, and their company history page reads like the opening line straight out of a college class in Southern literature.

“In 1919, when George Lathem and his son, Louie P. Lathem began selling time clocks, the father and son sales team traveled by train throughout the Southeast, getting off at the whistle-stops of small towns and looking for the telltale smokestacks of local factories … .”

Which makes me want to add, “The sulphur burned their eyes as they strode toward the block-long red-brick building … ” OK, OK, snap back to 2020. Well, sort of.

Workforce time clocks — Plenty of workforce time clocks, like this one manufactured by Lathem Time Corp. in Atlanta, are still in use.

As many organizations move toward cloud-based, mobile time-and-attendance software, I asked Lance Whipple, Lathem’s vice president of sales and marketing, about the viability of using workforce time clocks of a bygone era.

Whipple assured me that plenty of punch clocks are still in use.

“There are likely a couple hundred thousand Lathem punch clocks still in use daily, and many more when you add in competitive products,” Whipple said. “We’ve sold millions of time clocks to small businesses in our history.”

Punch clocks remain popular with small businesses, he added, and when you consider business needs, workforce time clocks make sense. Sure, we can romanticize their use in the farms and smoke-belching factories of yesteryear, but time clocks are simple to use and as reliable as sweet tea on a steamy Southern summer day.

“As much as we love time clocks, it’s not a sexy or exciting purchase for most small businesses,” Whipple said. “It serves a utilitarian purpose. The low cost of ownership is key in the decision making process. A small business can purchase a punch clock for a few hundred dollars, have it up and running in less than 10 minutes and it will provide many years of reliable service,” he said.

So reliable, in fact, that Lathem has heard from customers with workforce time clocks they made more than 50 years ago.

And time clocks require virtually no training, Whipple said.

“Some small businesses are reluctant to move to more complex technology until they grow to a point where manual time tracking is too much to handle easily.”

Although workforce time clocks are used in primarily blue-collar work environments, Whipple said the size of an organization typically will dictate what type of time and attendance function is in place.

“The smaller the business, the more likely they are to select a punch clock solution over a software-based system,” he said. “There will always be a need for a traditional punch clock for small business. Some aren’t ready to give up pen and paper or commit to the ongoing subscription cost of cloud solutions.”

All that being said, Whipple added that cloud-based applications provide incredible value in managing employee time and attendance.

“We are in a unique position to upgrade a traditional punch clock or older desktop software customers to these new cloud solutions as they outgrow their current product,” he said. “Our cloud-based customers that have made the transition love the access to their employee’s time and attendance data.”

Armed with my new-found knowledge of time clocks, my obsession has been quelled. Wait, time clocks. Clocks. Clocks!! Arrrrgghh, now Coldplay is stuck in my head again!

Can someone sing “It’s a Small World,” please?

September 23, 2019June 29, 2023

No-fault Attendance Policies Offer No Cover When the ADA or FMLA Are Involved

An employee suffering from epilepsy, migraines and heart condition asks (with a medical note) for two unpaid days off from work to treat symptoms related to her disabilities.

Instead of granting the leave, the employer assigns the employee points under its no-fault attendance policy and fires her for exceeding the allowable number of attendance points. The EEOC has sued the employer, alleging disability discrimination.

A no-fault attendance policy assigns points each time an employee is absent, with corresponding levels of progressive discipline automatically imposed at certain point levels. Employers like these policies because they simplify attendance issues.

These policies, however, carry, a certain degree of risk — namely in the handling of absences protected by the FMLA or ADA. If the FMLA or ADA protects an employee’s absence from work, an employer would violate the statute by counting the absence as part of a no-fault attendance policy. And, in this case (assuming the medical note is legit), and for this reason, it appears this employer has a big problem with the EEOC.

On a more basic level, where’s the humanity in denying two days off for an employee to deal with medical symptoms, especially when the request is accompanied by a doctor’s note?

The ADA requires reasonable accommodations. Unless the employee is a serial abuser of unpaid days off, it’s hard to imagine a situation in which two days is not a reasonable request.