Tag: wage and hour

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

employment law, Idalski

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Federal contractors fined $293K by Labor Department for wage violations

federal contractors, mask, mail

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.”

Also read: Wage and hour violations cost restaurant $697K

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 new Labor 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.

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

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Labor Department reopens the floodgate to liquidated damages in wage and hour investigations

restaurant industry employees, wage and hour compliance for employers

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.
Once the DOL comes knocking, it will be too late.
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What employers and HR should expect from new Labor Secretary Marty Walsh

Department of Labor Secretary Marty Walsh

Recently confirmed Labor Secretary Marty Walsh will be the first union member to head the U.S. Department of Labor in half a century.

Given Walsh’s extensive union background, labor-management issues such as the unionization push among employees at an Amazon warehouse in Alabama will be front and center during his tenure as the Labor Department’s new leader. It’s also expected that Walsh’s leadership of the agency will prompt a crackdown in the enforcement of wage-and-hour laws and workplace safety regulations, among other worker-friendly policies.

According to a post on law firm Fisher Phillips’ blog shortly after Walsh was nominated in January to lead the Labor Department, “Many view Marty Walsh as a leader who aims for pragmatic solutions to problems and strives for unity and consensus-building. His first allegiance, however, will be toward workers. ‘Working people, labor unions, and those fighting every day for their shot at the middle class are the backbone of our economy and of this country,’ Walsh said in a tweet soon after Biden announced him as the nominee. ‘As Secretary of Labor, I’ll work just as hard for you as you do for your families and livelihoods. You have my word.’ ”

Kevin M. Young, a partner in labor and employment in Seyfarth’s Atlanta office, Jason E. Reisman, co-chair, Labor and Employment Practice Group, for Blank Rome in Philadelphia, and Christopher D. Durham, partner in Duane Morris’ Employment, Labor, Benefits and Immigration Practice in Philadelphia, offered their thoughts on what employers should expect as Walsh begins his tenure as the new Labor secretary.

Aggressive enforcement

Durham said employers can expect the Labor Department to more vigorously enforce employment laws through audits, investigations and court actions against employers, contrasting with the Trump administration’s focus on securing employer compliance through education, outreach and other less adversarial means. 

“These shifting enforcement priorities will be supported by regulations and sub-regulatory guidance that is more protective of employee rights than the generally business-friendly interpretations of the prior administration,” Durham said. “We have already seen examples of this regulatory shift in the DOL’s moves to undo the prior administration’s regulations on joint employer status and tipped-employee wages.”

Also see: Simplify labor compliance with accurate time and attendance tracking

Young pointed out that while the Labor Department under Trump was not as light on employers as some might assume — the Wage & Hour Division set a new record for back wages recovered in 2019 — it took a softer approach than previous administrations on the topic of damage enhancements. Liquidated damages, which is a penalty in an amount equal to back wages owed, were taken off the table in all but the rarest cases, he said.

“The new administration has reversed course on that issue, and it’s likely that other enforcement measures will reenter the picture, too,” Young said. “It’s not clear yet whether the number of investigations will increase — that depends on the budget as much as anything else — but employers should certainly be preparing for more aggressive investigations than in past years.” 

Reisman said that although Walsh was confirmed with strong bipartisan support, employers should expect his reputation as someone who is a consensus-builder to be tested early with so many critical items on his agenda, including the pandemic response and some critical Trump-era regulatory initiatives.

Employers also should expect there to be an ongoing clash between the age-old tensions that exist between the Labor Department when operated under a Republican administration and under a Democratic administration. 

“There is no question, given Walsh’s labor background and leadership of the building trades, that he will be a staunch supporter of workers’ and unions’ rights,” Reisman said. “He will not want to alienate his base of union support, or that of President Biden, especially in light of Biden’s promises to empower workers and unions.”

Employers can expect a return to a Labor Department that resembles and likely surpasses the enforcement efforts of the Obama administration, Reisman said. The DOL will be back on the trail of finding violations and holding employers accountable. 

“The focus will be less on assisting with compliance and educating employers and more on the gotcha game of penalizing employers who — knowingly or unknowingly — are not in compliance with the laws the DOL enforces,” he said.

Enforcing wage-and-hour and overtime violations

Nowhere will the shift in Labor Department enforcement priorities and positions be felt more by employers than enforcement of the Fair Labor Standards Act’s overtime and minimum wage requirements, Durham said. 

“I expect the number and scope of audits conducted by the DOL’s Wage & Hour Division to increase substantially, and that the DOL will not be as willing to settle violations for less than ‘make-whole’ relief for affected employees,” he said. “In addition to back wages, the DOL is more likely to insist that employers pay liquidated damages when settling a wage-and-hour investigation, and the DOL likely will increase the use of civil monetary penalties as a potent deterrent to send a message to employers.”

Also read: Wage and hour violations cost restaurant $697,000

Employers should expect a return of the enforcement tools of the past, liquidated damages being almost automatic as penalties in wage-and-hour investigations, Reisman added. “We expect more willfulness assertions by the DOL, which allow a back wage look-back period of three years, rather than two. And, yes, the use of civil money penalties will be used more broadly as a tool than in the last four years.”

Minimum wage and the tip credit

Young said that the new administration clearly supports increasing the federal minimum wage. And there’s also little doubt that the benefit of any increase will apply for tipped workers.

“The question here is whether the FLSA will continue to allow a portion of a tipped employee’s minimum wage to come in the form of tips,” he said. “A recent federal legislative proposal would remove this so-called tip credit, requiring restaurants to directly pay the full minimum wage to each tipped employee, without credit or concern for the amount of tips they earn on the job. If passed, this could have a seismic impact on a restaurant industry that operates on thin margins and has spent most of the last year on life support.”

Supporting fair workweek and predictive scheduling

Fair workweek laws have swept the nation and in particular the retail, fast food and hospitality industries over the past decade or so, Young said. These laws are likely on the radar of Biden and Walsh.

One recently took effect in the president’s back yard (Philadelphia), and another has been the focus of lobbying efforts in Walsh’s home state of Massachusetts, Young noted.

“Instituting this sort of reform at the federal level would require an act of Congress,” Young said. “After all, the DOL can’t make new law, only interpret and enforce what’s on the books, and I don’t get the sense that this sort of measure is among Democratic lawmakers’ core labor priorities.” 

Also read: The fair workweek squeeze on employer scheduling

In the past couple of years multiple local jurisdictions including Chicago, Seattle and San Francisco passed predictive scheduling laws, with more such laws likely to hit the books in the coming years, Durham said.  

Absent new legislation at the federal level, it is highly unlikely the Labor Department will impose requirements similar to these laws because the FLSA generally does not impose requirements on employers related to scheduling employees, he added. 

“However, one way in which the DOL could enhance the financial benefit to employees of such laws would be to take the position that certain penalties under predictive scheduling laws, such as penalties for shift cancellations or other scheduling changes with insufficient notice to employees, need to be included in the regular rate of pay for purposes of calculating overtime under the FLSA,” Durham said. “The DOL’s current position, set forth in a Fact Sheet published in December 2019, is that most such penalty payments do not need to be included in the regular rate of pay.”

Reisman also questioned whether the Labor Department will have the time or resources to make its way far enough down its priority list to fair workweek/predictive scheduling regulations, or what its authority would be in seeking an impact in that realm. 

Still, he added, “Anything that would entail a nationwide policy or regulation such as paid leave could be well-received by many employers if it serves to preempt state and local laws and regulations that have created an almost unmanageable web of compliance pitfalls for multi-state employers.”

Labor law enforcement can strike your business at any time. Ensure simplified and automated compliance to federal, state and local labor regulations and avoid costly penalties. Book a demo and see Workforce.com’s powerful compliance tools in action.

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Labor Department fines, penalizes contractor $100K for falsified overtime records

employment law, labor law, overtime records

Recent wage and hour violations by a New Hampshire contractor is a signal to other employers that they should review their workforce management policies and overtime records for compliance with federal, state and local labor laws.

Facades Inc., a commercial exterior surfaces applicator-installer in Hampstead, New Hampshire, falsified pay records to cover up its failure to pay employees the required overtime wages they earned, according to a U.S. Department of Labor investigation.

The Labor Department’s Wage and Hour Division recovered $87,360 in back wages owed to 28 Facades Inc. employees. It also assessed a civil money penalty of $19,516 to address the willful nature of the violations, which included the employer’s falsification of payroll records, according to a DOL press release.

Check your workforce management policies

Small business owners have numerous priorities, and accurately managing payroll and time and attendance policies should always remain at the top, as the Facades case shows. Effectively tracking employee hours with an automated workforce management solution will clean up compensation and support compliance practices.

Investigators found Facades Inc. violated the Fair Labor Standards Act when it paid straight time for overtime hours worked by employees and concealed those payments as “reimbursements” in payroll registers. Rather than recording and paying for overtime hours at time-and-one-half workers’ regular rates of pay, the employer recorded only up to 40 hours in their records and masked their straight time payment for any additional hours, the release stated.

“Workers deserve to get paid all the wages they have earned, and our enforcement of the law ensures that happens,” said Wage and Hour Division District Director Daniel Cronin in Manchester, New Hampshire. “In this case, the employer attempted to conceal illegal straight-time-for-overtime payments. In addition to being held accountable for back pay, the employer paid a significant civil money penalty. Other employers should use the outcome of this investigation as an opportunity to review their own pay practices to avoid violations like those found in this case.”

Automate your processes to avoid penalties

Employees deserve their paychecks on time and to be accurately compensated for the time they spend working. Automated payroll practices help eliminate delays, improve compliance and minimize costly errors.

With employment contracts, timesheets, benefits and labor laws, there are a lot of factors involved in payroll that can result in miscalculations. Workforce.com’s payroll integration solution connects with more than 50 payroll systems to ease compliance and enhance efficiency. 

Ask for a demo of Workforce.com’s powerful time and attendance platform today and see how to make workplace compliance effortless and effective.

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Wage and hour violations cost restaurant $697K

wage and hour violations, Tank Noodle

The U.S. Department of Labor under the Biden administration is ramping up its enforcement of wage and hour violations as a popular Chicago restaurant whose employees often worked for tips only was fined nearly $700,000.

The department’s Wage and Hour Division recovered $697,295 in back wages for 60 employees following an investigation of Tank Noodle Inc. Investigators found the employer owed some workers more than $10,000 each in back wages and identified numerous violations of the Fair Labor Standards Act’s minimum wage and overtime requirements.

Inaccurate time and attendance records

The agency also found the business owner failed to keep accurate records of the number of hours employees worked, as required by law.

In October 2020, the wage and hour division notified Tank Noodle, a popular Vietnamese restaurant in Chicago’s trendy Uptown neighborhood, that they were in violation of the FLSA. Tank Noodle signed an agreement to pay the back wages they owed Dec. 7, 2020.

Using an effective time and attendance system helps prevent the kind of wage and hour violations that led to the steep penalty incurred by Tank Noodle, said Tasmin Tresize, president of Workforce.com.

“While it’s unclear what type of workforce management system was utilized, it has evidently led to major violations in the wage and hour code,” Tresize said.

Shortly after the November presidential election, Michael Lotito, an attorney with Littler in San Francisco and co-chair of Littler’s Workplace Policy Institute, offered his thoughts on changes in Labor Department enforcement under the Biden administration. He was quoted as saying the division will likely revisit overtime standards and issue rules dealing with pay entitlement for off-the-clock work, like checking email from home. 

“Enforcement will be aggressive, especially against certain industries like fast food, janitorial, construction and other targets. The department will also coordinate with state DOLs to cooperate with one another as investigations progress,” Lotito said. 

Large amount of back wages owed

The Tank Noodle investigation recovered a considerable amount of back wages for 60 employees in an industry whose essential workers are often among the lowest paid, said Wage and Hour Division District Director Thomas Gauza in Chicago.

“Failing to accurately record the hours employees work does not prevent a federal investigation, the discovery of violations and ultimately, back wage recovery,” Gauza said in a press statement. “This case shows that employers that attempt to gain an unfair competitive advantage by flouting the law will be held accountable.”

Violations of tip pooling, overtime requirements

Investigators found that Tank Noodle employed some servers to work only for tips, failing to pay them any direct wages, as the law requires. Tank Noodle also shorted servers when the employer pooled tips each day, and divided them evenly among all staff, which illegally included management, according to the Labor Department.

The FLSA does not permit management to participate in tip pooling arrangements. The restaurant violated overtime requirements when it paid some workers flat amounts per day, regardless of the number of hours that they worked, the Labor Department said. Doing so resulted in violations when those employees worked more than 40 hours per week but the employer failed to pay overtime.

Tresize noted that as the Labor Department looks to be taking a more aggressive approach to each case, “It’s important that businesses invest in solutions to reduce their noncompliance risk.”

Effective restaurant employee scheduling best practices

Using best practices for an effective restaurant employee schedule will boost wage-and-hour compliance, avoid understaffing and labor cost overruns. One way to start scheduling in advance without the hassle of paperwork is with an online restaurant scheduling system.

See how to build your restaurant’s employee work schedule with ease and remain in compliance with all labor laws. Sign up for a free trial of Workforce.com’s shift scheduling software today.

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Employers facing lawsuits for failing to pay for pre-shift COVID-19 screenings

VF Corp., COVID-19, mask, education

In the early days of the COVID-19 pandemic, I asked this question: “Are employers legally responsible for paying workers for the time it takes to record their body temperatures before entering the workplace?”

My answer was a legal, “Probably,” and a moral, “Definitely.”

This isn’t a “what does the law allow” issue; this is a “what’s right is right” issue. If you’re requiring your employees to queue in a line to take their temperature before you’ll let them enter the workplace, pay them. Don’t be cheap and don’t count pennies.

Your employees are scared. They are risking their own personal health and safety, and that of everyone who lives in their homes, to keep your essential business up and running. They could just as easily stay home, limit their exposure, and collect unemployment. What they need is your compassion, not your penny-pinching. Times are tough for everyone. I get it. But your business shouldn’t go belly up if you pay each employee for a few extra minutes of time each day.

But since this is a legal blog, we might as well take a fresh look at the legal issue, courtesy of a recently filed lawsuit against The Merchant of Tennis Inc., a San Bernardino, California, racquet sports retailer. According to Law360, among other wage and hour violations, José Hernandez Solis claimed that his former employer illegally failed to pay employees for their time spent undergoing

COVID-19 temperature checks at the beginning of the shifts.
Law360 points out that Walmart faces similar allegations in another recently filed California lawsuit. According to that lawsuit, Walmart failed to pay its employees for the 30-45 minutes spent each workday for COVID-19 temperature screening and questioning.
Legally, the standard, per SCOTUS’s decision in Integrity Staffing Solutions v. Busk, asks whether the pre-shift activities are “integral and indispensable” to an employee’s principal activities (“necessary to the principal work performed” and “done for the benefit of the employer”). It’s hard to fathom a situation during a pandemic in which pre-shift health screenings don’t meet this standard.
I think employers getting sued over this issue have real (and expensive) exposure. Don’t join them. Do the legal thing. Do the right thing. Pay your employees for this time.