Litigators from Seyfarth Shaw, the top U.S. labor law firm, as they share do’s, don’ts, tips, and traps for employers in the hospitality industry. The labor law attorneys from Seyfarth Shaw, LLP–the country’s top wage and hour litigator–share their best advice for minimizingg compliance risk for employers just like you.
3. EPAY Systems -- designed to meet the needs
of your complex, distributed workforce
• Reduce your labor
•
3|
costs by 5% or more
Keep you in control
and in compliance
5. Presenting
Jeremy W. Stewart
Associate, Seyfarth Shaw LLP
Labor & Employment
jwstewart@seyfarth.com
(312) 460 - 5662
Jeffrey M. Burns
Associate, Seyfarth Shaw LLP
Labor & employment
jburns@seyfarth.com
(617) 946-4944
5|
6. Q&A
To ask a question, simply
type your question in the
“Question” box on the right
side of your screen or raise
your hand by clicking on the
icon next to your name.
6|
34. EPAY Systems
Michelle Lanter Smith
Chief Marketing Officer
EPAY Systems, Inc.
mlsmith@EPAYsystems.com
773-499-7512
.
34
35. EPAY -- In Time with You
Complex pay rules?
Mobile workforce,
union contracts,
multiple job assignments?
No problem!
Uniquely flexible
35
36. Reduce your labor costs
Eliminate erroneous
pay
calculations, time
rounding,
and management
inconsistencies
Eliminate buddy
punching
Reduce costs
associated with
paper checks. Save
an average of $2.87
per pay period/per
employee.
or more!
Biometric time clocks
with camera and
finger print reader
36
37. Minimize Compliance Risk
•
•
•
•
•
•
Audit Trails
Overtime
Meal Breaks
Pay Differentials
Privacy and Security
Reduce Workers
Comp Claims
•
Did you have an
accident free day?
37
40. Upcoming Education
•
•
Mobile GPS Webinar: Time Tracking & Mobile
Apps. Nov 7: 10:00 am cst
EPAY Demonstration: Time Tracking Your
Way. Nov 14: 10:00 am cst
Register at www.EPAYsystems.com
40
41. Thank You!
Jeremy W. Stewart
Associate, Seyfarth Shaw LLP
Labor & Employment
jwstewart@seyfarth.com
(312) 460 - 5662
Jeffrey M. Burns
Associate, Seyfarth Shaw LLP
Labor & employment
jburns@seyfarth.com
(617) 946-4944
41
42. Connect with us
Connect with EPAY on:
o LinkedIn – follow our company page at
EPAY Systems
o Twitter -- @EPAYsystems
o Sign up for our e- newsletter at
EPAYsystems.com
Connect with Seyfarth Shaw LLP:
o Wage & Hour Litigation Blog
http://www.wagehourlitigation.com/
o Twitter - @SeyfarthShawLLP
42
Thanks John. Welcome to our webinar “Time & Attendance Solutions for Employers with a Distributed Workforce” presented by EPAY Systems. My name is Michelle Lanter Smith. I am the Vice President of Marketing here at EPAY.I’d like to extend a warm welcome to all of you on the line with us today.Also, I see we have some our partners with us today. A warm welcome goes out to our Sprint and Paychex friends.Our goal today is to give you a high level understanding of how an EPAY time and labor management system can benefit a firm that has employees scattered across many locations. I’ll be taking you through an overview and then I’ll be joined by our systems expert, John Gaudiuso, for a demonstration of our cloud-based software, Blueforce.
But before we give you a brief tour of Blueforce, I’d like to tell you briefly about EPAY.EPAY is in the time and labor management business and we specialize in dealing with complex and distributed labor. Our organization understands all of the challenges and limitations a company with employees scattered everywhere deals with as it relates to deploying new technology in the field, as well as managing and tracking it’s labor force.Our web-based system, Blueforce, drives two main benefits for our clients:We help them reduce their total labor costs by more than 5%We help them lower their overall risk in facing compliancy issues – we have a built-in compliance orientated features . . . Right in our systemDistributed labor can present many challenges. Yet, labor is probably your largest cost.Complex pay rules, shift differentials, employees working one task in the morning and a different one in the afternoon. Employees working at customer sites or moving from job to job.These are tough for most time and attendance systems. But not for us. Our uniquely flexible pay rules engine can handle complex union rules and state regulations, not to mention your own complexities because of the nature of your business.
And speaking of compliance, it’s not something to be overlooked in today’s labor environment.Federal court filings of wage and hour class and collective actions have increased more than 500% since 2000.The Department of Labor (DOL) recently increased its investigative staff by 40% to crack down on non-compliant.Indeed, the vast majority of class and collective actions filed in state and federal courts continue to be wage-hour cases. And when they do coming knocking on your door, it’s expensive.The average reported settlement is $8.5 million per case, with a per plaintiff average of $5,600. Allegations run the gamut—unpaid overtime; off-the-clock-work; misclassification of exemption status; missed short or late meals and breaks; unpaid donning and doffing time; failure to pay minimum wage, and improper tip pooling. Could you be at RISK?Probably most of you on the line, would say “most definitely”That’s why today, I’m thrilled to introduce to you our guest speakers from Seyfarth Shaw for today’s webinar on compliance. They really do have the Best Tips for Staying out of Trouble.Seyfarth Shaw’s defense of employers in wage and hour litigation has become one of the hallmarks of the firm’s nationally recognized employment law practice. Its Wage & Hour litigation practice group consists of more than 80 attorneys in offices across the country. They have litigated hundreds of complex wage and hour cases in nearly every federal jurisdiction and in courts of almost every state, as well as before administrative agencies and on a multi-jurisdictional basis.Today we are fortunate to have two of the firms prominent partners in the California wage and hour space, Brandon McKelvey and Ann Marie Zaletel
Wage and hour cases continue to be a source of potential liability for employers. Indeed, the vast majority of class and collective actions filed in state and federal courts continue to be wage-hour cases. Additionally, the Department of Labor has hired more investigators and continues to aggressively investigate company’s wage-hour practices. Companies hit with these cases may face significant exposure and, even if their policies are lawful, defending a class or collective action can cost hundreds of thousands of dollars, if not more. As a result, it is critical for a company facing a lawsuit to quickly assess its risks and determine its litigation “goals.” Even if not currently facing a lawsuit, a company should take measures to avoid litigation and to minimize its legal risks. To do so, companies need to keep abreast of changes in the law and litigation trends. Wage-hour law continues to develop and change, and these developments may impact your organization or industry.
Amount Employer is using as the tip credit is the difference between the minimum wage and the wage being paid (in many states $2.13 per hour; some states that is higher)The FLSA’s tip credit provision allows employers to pay tipped employees a sub-minimum wage as long as the employer: (1) pays a cash wage of at least $2.13 per hour; (2) informs its employees of the FLSA’s tip credit provisions; (3) permits its employees to retain all their tips (w/ some exceptions); and (4) ensures that the cash wage plus the tip credit equal at least the minimum wage each week. The rub is that the FLSA does not permit an employer to utilize the tip credit for all time worked by employees, just for time spent in a tipped occupation. An example the regulations use is the hotel worker who is both a maintenance man and a waiter. In this dual job scenario, the tip credit can be taken for the time the worker spends as a waiter, but not as a maintenance person. There is no clear demarcation between when waiter becomes the maintenance person, but the DOL takes the position that if a tipped employee spends “substantial time” (more than 20%) performing related, but non-tipped duties referred to as “general preparation work or maintenance,” then the entire tip credit is lost. The problem for employers is no authority explaining what duties constitute “general preparation work or maintenance.” Recent Increase in Tip Credit CasesBurden of Proof in Tip Credit Cases is UnresolvedArgument Tip Credit is an exemption to the minimum wage, so, it is an Affirmative Defense and Employer Bears the BurdenLimited and cursory case law on the topic—Barcellona v. Tiffany English Pub, Inc., 597 F.2d 464, 467 (5th Cir. 1979)Alternatively, Tip Credit is Not An Exemption, Plaintiff Bears the BurdenFast v. Applebee’s Int’l, Inc., 638 F.3d 872, 882 (8th Cir. 2011) Tip Credit is Not Found in Exemptions Section, so Plaintiff Bears the BurdenEmployers Should Utilize Applebee’s and Similar Cases When Tip Cases AriseWill want to give examples of recent tip credit cases--Few other state court cases stating employer bears burden for tip credit violation: See Chisolm v. Gravitas Rest. Ltd , 2008 WL 838760, *3 (S.D. Tex. Mar. 2008) (simply stating employer bears the burden of proof of its entitlement to the tip credit); Dominguez v. Quigley’s Irish Pub, No. 09-cv-2583, 2011 WL 2038728, *15 (N.D. Ill. May 24, 2011) (same) --Barcellona was effectively overruled by Allen v. McWane, Inc., 593 F.3d 449, 458 (5th Cir. 2010) (employee bears the burden on § 203 claims because “[t]he statute…demonstrates that § 203 is a list of definitions…in contrast to § 213, which is titled “Exemptions.”) So, distinguishing between exemptions and exceptions--Exemptions from minimum wage are found in Section 213 of the FLSA. Tip Credit is found in 203(m), which sets forth definition of wages. --Cases in similar contexts have found burden to be on Plaintiff if it is not an exemption. Allen v. McWane, Inc., 593 F.3d 449, 458 (5th Cir. 2010) (employee bears the burden on § 203 claims because “[t]he statute…demonstrates that § 203 is a list of definitions…in contrast to § 213, which is titled “Exemptions.”); Franklin v. Kellogg Co., 619 F.3d 604, 612 (6th Cir. 2010) (explaining that burden of proof for claim arising under section 203(o) was properly on plaintiff because section 203 is not an exemption and thus, not an affirmative defense on which the employer bears the burden); Hertz v. Woodbury Cty., Iowa, 566 F.3d 775, 783-84 (8th Cir. 2009) (explaining that mealtimes are not an exemption from the minimum wage and overtime requirements and thus, employee bears the burden of proof); Brock v. City of Cincinnati, 236 F.3d 793, 809-10 (6th Cir. 2001) (explaining that Section 207(k) is not an exemption, but instead is a declaratory statement that adjusts the permissible length of the workweek, and thus, the provision’s applicability is not an affirmative defense on which the employer must plead and carry the burden).
Was some discussion before regulations came out of whether DOL would impose a percentage limit on the amount of tips that could be contributed to a tip pool, but the DOL did not do so.Although the FLSA permits the use of tip pools, the statute and its regulations limit the types of employees who can participate in a tip-pool to those who “customarily and regularly” receive tips like waiters, bartenders, busboys, bellhops, and other front-of-the-house employees. But, if the employer does not take a tip credit (that is, if the employer does not pay less than the federal minimum wage to tipped employees), employers and employees can agree to include non-tipped employees like dishwashers and cooks in the tip pool. Oregon Restaurant and Lodging, et al v. Solis, D. OR June 7, 2013 - holding that the amended regulations were invalid because the clear intent of Section 3(m) of the FLSA was “only to limit the use of tips by employers when a tip credit is taken” and because “an employment practice does not violate the FLSA unless the FLSA prohibits it.”
STATE: Requirements vary from state to stateExample: Massachusetts -30 minutes after 6 hours -Must be relieved of all duties
STATE: Requirements vary from state to stateExample: Massachusetts -30 minutes after 6 hours -Must be relieved of all duties
STATE: Requirements vary from state to stateExample: Massachusetts -30 minutes after 6 hours -Must be relieved of all duties
“Engaged to Wait” or “Waiting to be Engaged”
Wow – what a lot of great information you’ve given us in such a short time. Now if you have question for Brandon or Ann Marie, just let us know. We’ll see a short survey when you close out today’s session. Just let us know and we’ll try to help get your question answered.I’d like to wrap up our time together today with a few words on EPAY and how we address your compliance needs.
Since 2001, EPAY has delivered innovative, efficient and effective solutions to address our clients critical time and labor management issues.Our client base is very diverse – serving some of the largest in Janitorial,Building Maintenance – Healthcare –– Security –– Foodservice – and Hospitality. You’ll see our clocks in some of the largest retailers, public sporting venues, and airports in the nation.One of the central themes we hear from our clients is that we can mirror the operating environment. Specifically we can handle all the various payroll permutations to ensure accuracy and compliancy for their organization. The flexibility of Blueforce is built-in; we meet our customers’ business needs without upfront custom costs.
Upon the implementation of our system, EPAY’s clients see an immediate Return on Investment, through the reduction of the following exposures.Elimination of buddy of punchingEliminate erroneous pay calculations,human error, and time roundingReduce payroll administration and distribution time associated with pay checks and pay stubsBy utilizing our advanced functionality the 5% reduction in Labor can climb to 9%.An example of this would be our real time alerts which can reduce overtime exposure and keep you on budget
Time and Wage cases in 2012 have surpassed discrimination cases for the most litigated exposure facing corporations. EPAY provides many features and reports that help mitigate exposure and provides access to historical data to dispute labor audit claims.Audit Trails – Changing an employee’s timecard without his/her approval is a surprisingly common FLSA violation. Blueforce flags all unapproved changes, so managers can address them before they become issues. Overtime - Calculating overtime properly is a huge litigation concern for employers. Blueforce tracks work time to the minute and automatically notes when an employee reaches overtime. Better yet, it can even alert managers before an employee hits the OT threshold. Meal Breaks – Improperly tracking or enforcing required meal breaks are another corporate Achilles’ heel. Blueforce asks employees if they’ve taken their proper meal breaks, advises you of deviations, and can even generate real-time alerts when a meal break is missed. Pay Differentials – When a single employee is paid varying hourly rates, depending on shift or task, it can create headaches for your payroll staff. Because we ‘configure’ your pay differentials into Blueforce at the outset, it accurately calculates employee pay effortlessly. Privacy and Security - Our time-tracking system keeps you in complete compliance with the Sarbanes-Oxley Act, which protects employees’ confidential information. We can even provide you with documented proof that your employees and managers only have access to what they should. Workplace Safety – We know on-the-job injuries are a real concern and that Workers’ Compensation claims are a very real expense. That’s why we’ve built a rather unique safeguard into our punch-out procedure. At the end of each shift, employees are asked if they had a “safe day.” The benefits are two-fold: 1) if an accident occurs, you’re instantly in the loop, and 2) if a questionable claim is made later, you have some documentation of your own.
EPAY has provided solutions to the most complex labor environments, encompassing hundreds of collective bargaining agreements.ABM Industries – 110,000, across 6500 sitesHealthcare Services Group 30,000 eeacroos 3,000 sitesCompass Group – 20,000 across 2500 sites Crothall - 16,000 eeUnicco - 16,000 eeKBS – 15,000 ee
In working with our clients EPAY has understood the importance of mirroring our clients environment and making our system as user friendly as possible.Upon the tabulation of punch data, EPAY’s pay rules engine allows our system to compute gross payroll regardless of the complexity of the clients pay rule. Our competitors struggle with this development and often time costs their clients hundreds of thousands of dollars in professional services fees.Understanding the challenges that end users face in remote environments, EPAY has developed various forms of data collections methods that ensure two things for our clients:There will always be a way for us to collect and transmit data (Wireless, LAN, WiFi, DialUp)NEXT SLIDE . . .
Wage and hour cases continue to be a source of potential liability for employers. Indeed, the vast majority of class and collective actions filed in state and federal courts continue to be wage-hour cases. Additionally, the Department of Labor has hired more investigators and continues to aggressively investigate company’s wage-hour practices. Companies hit with these cases may face significant exposure and, even if their policies are lawful, defending a class or collective action can cost hundreds of thousands of dollars, if not more. As a result, it is critical for a company facing a lawsuit to quickly assess its risks and determine its litigation “goals.” Even if not currently facing a lawsuit, a company should take measures to avoid litigation and to minimize its legal risks. To do so, companies need to keep abreast of changes in the law and litigation trends. Wage-hour law continues to develop and change, and these developments may impact your organization or industry.
That’s all the time we have today. Thank you to all of you for joining us today. We’d like to be your time and labor management provider. At EPAY, we’re IN TIME WITH YOU.Until next time, then, have a wonderful rest of your day. Good-bye.