Retail Workforce Compliance Challenges: Brought to you by: Sponsored by:
Introduction Retailers face a host of workforce management challenges, not the least of which is compliance with a multitude of ever-changing federal, state, and local labor laws, negotiated labor agreements, and internal work rules and policies. Failure to comply with any of these whether law or rule can carry hefty costs in the form of financial penalties, expensive and time-consuming lawsuits, inefficient use of management resources, and the negative public exposure that leads to a degradation of brand reputation. To illustrate the aforementioned multitude of changes, consider this sampling of federal legislation that directly impacts both full-time and hourly retail associate scheduling and compensation: Fair Labor Standards Act (1938) 1 FLSA mandates that retailers classify employees into exempt and non-exempt categories, and it ascribes specific methods to how non-exempt employees are paid overtime. Family and Medical Leave Act (1993) 2 FMLA requires retailers to offer associates anywhere from 12 weeks of unpaid leave to 26 weeks of unpaid leave depending on the employee and their circumstances. The law also provides specific rules for Military Family Leave Provisions, including Military Caregiver Leave and Qualifying Exigency Family Leave. Sarbanes-Oxley Act (2002) 3 SOX regulations impose recordkeeping and control provisions that directly impact workforce management processes, and more specifically, how employees are paid. Complying with these provisions ensures the integrity of associate pay, which is typically a retailer s single largest controllable cost. These are complemented by the responsibility of retailers to comply with strict and constantly changing state labor laws especially in highly regulated states like California, New York, and the District of Columbia and the growing number of city-specific regulations affecting pay and scheduling. Actively enforced, stateand city-specific regulations dictating overtime pay, employee leave, and meal break rules, coupled with seasonally variable work hour restrictions for minors and safety-related restrictions for all employees, require vigilant management oversight. This is especially true in business environments that span multiple states. Demonstrating compliance with state-level labor laws is no longer a matter of simply tacking up a poster up on the break room bulletin board. Negotiated labor rules and the internal policies that help define a retailer s culture add two more thick layers to the compliance conundrum, and the challenge is only becoming more complex. The Affordable Care Act (ACA) also introduces volumes of legislation that directly impact scheduling practices. For a sampling of those volumes, see the draft forms released by the Internal Revenue Service in July 2014 that serve as a precursor to those which employers will use to comply with the exhaustive reporting requirements mandated by the ACA in 2015/2016. 4 Labor compliance is first and foremost about cost avoidance. To mitigate that liability, it s incumbent on retailers to put compliance-enabling procedures in place. Increasingly, the execution of those procedures is aided by workforce management (WFM) software systems. This paper will explore the potential cost of non-compliance, the complexity of keeping up with dynamic labor rules and laws, and the value of automating the effort. The Ramifications Of Non-Compliance WFM compliance or the lack thereof requires retailers to take on some degree of calculated risk. The level of risk a merchant is willing to accept is business culture specific, but WFM software featuring tools that assist with labor rule compliance decision-making helps merchants manage their exposure. It s important for all retailers to be aware, however, that non-compliance with labor laws and work rules can have devastating consequences. Potential costs of non-compliance include legal costs, fines, awards to complainants, and penalties. While retailers certainly aren t required to remit fees to 1 Fair Labor Standards Act Of 1938, U.S. Department of Labor, http://www.dol.gov/whd/regs/statutes/fairlaborstandact.pdf 2 Family and Medical Leave Act OF 1993, U.S. Dept. of Labor, http://www.dol.gov/whd/fmla/ 3 Sarbanes-Oxley Act of 2002, U.S. Securities and Exchange Commission, http://www.sec.gov/about/laws/soa2002.pdf 4 IRS Forms & Publications, http://www.irs.gov/forms-&-pubs 1
state or federal governments if they forget to schedule someone for a break or unknowingly discriminate, repeated negligence whether willfully or unintentionally can result in any number of said costs. The expenses quickly mount. In one example, a $2.5 million settlement was awarded to Taco Bell employees in Colorado who filed an unpaid overtime class action lawsuit against the fast food chain. The lawsuit alleged that the company inaccurately categorized assistant general managers as supervisors in order to deny them overtime pay. 5 The ACA also presents a host of new financial risks to employers of part-time associates. When a large employer fails to offer coverage to a sufficient number of full-time workers (30 hours of service per week on average), it s subject to a penalty that s equal to the number of full-time employees (minus up to 30) multiplied by $2,000. 6 As the law continues to unfold through 2015, the costs of ACA infractions in retail will surely mount. Non-compliance with internal and organized work rules can also have less public, but no less significant financial implications. Without work rules (and the systems to monitor them) in place, labor budgets can quickly balloon. Labor laws and mandates aside, willful or unintentional violation of internal overtime and punch rules by employees, for instance, can rapidly inflate a retailer s labor budget. The problem is exponentially exacerbated in businesses with a high volume of associates. These costs are to say nothing of consumer confidence lost to social irresponsibility. Regardless of the legal ramifications of non-compliance, retailers who operate in the public spotlight suffer incalculable sales losses when they re convicted of unfair employee treatment in the court of public opinion. Labor compliance is first and foremost about cost avoidance. To mitigate that liability, it s incumbent on retailers to put complianceenabling procedures in place. Increasingly, the execution of those procedures is aided by workforce management (WFM) software systems. The task of labor compliance is daunting and the steps to avoiding the risk are complex. To effectively protect both business and associate interests, retailers must centralize and automate the labor law and work rule compliance effort. Managing Compliance Change Across Multiple Jurisdictions While it s ultimately incumbent on the retailer to ensure compliance with local, state, federal, collective bargaining, and internal workforce management policies, without dynamic software systems supporting the effort, the task is cumbersome and welcomes even more risk. Modern WFM software systems help retailers manage 5 $2.5M Settlement Reached in Taco Bell Unpaid Overtime Class Action Lawsuit, BigClassAction.com, September 2013, http://www.bigclassaction.com/settlement/2-5-taco-bell-settles-unpaid-overtime-class-action.php 6 Determining Full-Time Employees for Purposes of Shared Responsibility for Employers Regarding Health Coverage, Internal Revenue Service, http:// www.irs.gov/pub/irs-drop/n-12-58.pdf 2
these layers of complexity through provision of a dynamic library of work rules that take constantly changing laws, rules, and labor agreements into account. With such a library in place, retailers are empowered to exercise their own risk tolerance and make informed scheduling decisions based on a clear and known set of location-specific work rules. The library should be accessible for configuration of rules specific to the subjection of the store to state, local, and municipality labor laws as well as union and internal policies associated with parameters including the age of associate and whether the associate is hourly or salaried. With these rules in place, retailers are equipped to automate labor law and work rule compliance while maintaining the flexibility to make their own provisions. Implementation of a system to manage labor law and work rule compliance standards is not, however, a standalone endeavor. For best automation results, the system must be integrated with several facets of the WFM and HR systems environments, and corporate must remain vigilant in both managing its risk and oversight of its store-level execution. Preventing Non-Compliance Through Automation, Integration We ve ascertained that layers of federal, state, and local labor laws, as well as negotiated and internal work rules and policies, are complex and dynamic. For a company to effectively safeguard itself from exposure to intolerable risk, it must employ preventative measures in its employee scheduling system. That requires employers to automate the application of the rules and processes that help it manage risk or avoid risk altogether and to tie that automation into scheduling processes. Enabling such preventative scheduling helps retailers avoid: Allowing associates to cross benefit thresholds, such as those associated with the ACA. Breaking internal work policies, such as: o Working more overtime than permitted in a given pay period. o Allowing more than the allotted number of days scheduled in a row. o Subjecting associates to so-called clopening scenarios, whereby they close the store late at night and open the store early the next morning. Violating collective bargaining agreements, such as those designed to allow sufficient rest periods between shifts. Enabling employee self-service functionality that allows attestation of hours is another compelling approach to preventing non-compliance, and it can also protect retailers in the event associates dispute changes to their time and attendance records in court. A lack of documented associate attestation of hours worked has recently landed some high-profile brands, including McDonald s 7 and Walmart, 8 in expensive legal trouble. By presenting the associate s clock punches and hours worked during the previous shift at each clock-in and asking the associate for confirmation, retailers can document their associates agreement at the clock interface. This attestation functionality can also be extended to situations where a manager makes changes to an associate s time record, resulting in transparency and documentation on behalf of both employee and employer. In retail organizations employing tens or hundreds of thousands of associates across multiple geographies, leaving labor law and work rule compliance to store-level discretion is a risky proposition. The challenge calls for an automated approach to site-specific compliance, and one that s integrated with the retailer s core WFM applications including HR, scheduling, and payroll. While systems-based workforce compliance initiatives are designed to mitigate a retailer s exposure to excessive costs, WFM compliance isn t just about protecting business interests and financial statements. It s about protecting associates as well. That protection applies to associates themselves and their personal information. 7 McDonald s Franchise Allegedly Tampered With Time Sheets To Cut Worker Pay, Huffington Post, May 2013, http://www.huffingtonpost.com/2013/05/09/mcdonalds-worker-shift-records_n_3247463.html 8 Walmart & Contractor Settle $21M Wage Theft Suit... Democracy Now, May 2104, http://www.democracynow.org/2014/5/15/walmart_contractor_settles_21m_wage_theft 3
Complying With HR Data Security Standards In the wake of several high-profile data breaches, retailers are often scrutinized for the security of their POS infrastructures, which transmit extremely sensitive consumer financial data. Often, less attention is paid to the security of highly sensitive associate data that retailers store and transmit during an employee s tenure. WFM systems must maintain data security protocols that ensure compliance with federal legislation including: The Sarbanes-Oxley Act, which ascribes a level of government oversight to the internal processes and controls of publicly traded companies. Given that labor typically consumes anywhere from 40% to 60% of a business budget, poorly performed or undocumented WFM and labor processes can open the door to liabilities associated with Sarbanes-Oxley non-compliance. HIPAA (the Health Insurance Portability and Accountability Act of 1996), which provides privacy safeguards for employees participating in employer-sponsored group health, dental, and vision plans, flexible health spending accounts, and employee assistance programs. Since 2003, the U.S. Department of Health & Human Services has actively investigated nearly 100,000 HIPAA violations. 9 Retailers also have a responsibility to safeguard the sensitive HR data collected from their associates, which can include social security numbers, bank routing numbers, emergency contact information, and more. Steps to securing associate data include: While systemsbased workforce compliance initiatives are designed to mitigate a retailer s exposure to excessive costs, WFM compliance isn t just about protecting business interests and financial statements. It s about protecting associates as well. Review and documentation of existing HR security and data protection measures, including an analysis of current user and authorization administration protocols in the context of regulations concerning associate data protection. Identification and correction of security weaknesses and shortfalls, which can include: o Elimination of unnecessarily-stored HR data. o Implementation of firewalls to protect data that must be stored. o Encryption of sensitive HR data while in transit. o Imposing strict limits on those authorized to access HR data. o Enabling password protection of digital HR data and securing access to physical records. 9 U.S. Department of Health & Human Services, June 2014, http://www.hhs.gov/ocr/privacy/hipaa/enforcement/highlights/index.html 4
Conclusion Ensuring workforce management compliance is first and foremost about cost avoidance. The financial consequences of non-compliance with labor laws and collective bargaining agreements can reach exorbitant levels. With that said, the public relations and brand reputational backlash caused by non-compliance with labor laws can lead to a sales-impacting loss of consumer goodwill. That s difficult to quantify, but potentially no less damaging than class-action litigation. It s incumbent upon the retailer to take social responsibility beyond the minimum requirements put forth by the federal and local governments. In an extremely complex workforce management compliance environment, software automation and integration are prerequisite to meeting that responsibility. About Infor Infor is the world s third-largest supplier of enterprise applications and services, helping more than 70,000 large and mid-size companies improve operations and drive growth across numerous industry sectors. Infor Workforce Management is the most functionally rich solution for aligning long-term workforce planning with short-term forecasting and scheduling to optimize budgets, control payroll costs, maintain customer service levels, and comply with labor rules and regulations. With features that address every aspect of effective workforce management today including planning, scheduling, time and attendance, and absence management it also includes sophisticated business intelligence tools for measuring and analyzing workforce performance. 1 800 260 2640 www.infor.com About ISR Integrated Solutions For Retailers is the premier source for technology solutions in the retail industry. Our goal is to help retail executives make informed decisions about technology and operations solutions for every sales channel. The magazine and website provide insight on how retailers can achieve critical business objectives by integrating leading-edge solutions across the entire retail enterprise. 1 814 897 9000 www.retailsolutionsonline.com Brought to you by: Sponsored by: 5