Black Friday and Cyber Monday present unique compliance challenges for HR. If you’re a retailer, it’s easy to get swept up in the “all hands on deck” mentality of the major shopping days. And if you’re not, experts say it's important to be clear about whether and how you might permit workers to shop online at work during those days, and what security steps you expect them to take.
But before you go issuing sweeping edicts, make sure you’ve thought through a few potential legal ramifications:
1. Mind your wages and hours.
Remember that non-exempt employees must be paid for all hours worked and that they must receive time-and-one-half for all hours worked beyond 40 in a workweek. (There are some exemptions for “seasonal” establishments, but they’re narrow.) This is easy enough if you’ve got your exemptions right, but you’ll also need to remember that some states have their own overtime requirements, including salary thresholds higher than the Fair Labor Standards Act's (like in New York), daily overtime requirements (such as Nevada’s) and rules affecting individual industries (like those in California).
2. Research new scheduling laws.
Predictable scheduling laws are taking hold around the country so if you’re thinking about calling employees in at the last minute, you should be aware of what that will cost you, whether you end up calling them in or not. Recent adopters include at least San Jose; San Francisco; Emeryville, CA; Seattle; New York City; and Oregon.
3. Ensure worker safety.
Laws that require employers to take reasonable steps to keep workers safe don’t go out the window just because it’s Black Friday. In fact, the Occupational Safety and Health Administration has a fact sheet specifically aimed at such events, called “Crowd Management Safety Guidelines for Retailers.”
4. Remember that dissent can be protected.
Are your employees unhappy about having to work on Black Friday? Did they start a petition on social media? (Or are you worried they might air their grievances right out front?) These may very well be concerted activities protected by the National Labor Relations Act (NLRA). The holidays may be all about branding and good publicity for those in retail, but the NLRA doesn’t end when Black Friday begins and you can’t discipline workers for trying to work together to improve their working conditions.
5. Know your gig workers.
Are you planning to use contingent workers to fill in some gaps? There are certainly plenty of apps making this unbelievably convenient now, but you need to be sure that these workers are not actually employees. The best way to do this? Read up on the government’s stance on misclassification, especially its fact sheet for workers titled “Am I an Employee?”
6. Remember that seasonal hires are, in many respects, regular hires.
Hiring seasonal help doesn’t let you off the hook for most of your compliance responsibilities. Seasonal hires must be included in your upcoming EEO-1 report, for example, and also must complete Form I-9 like all other employees. In fact, your requirements are actually stricter in some cases: if you’re hiring someone to perform less than three days of work, they have to present their employment eligibility documents on the first day work (and, arguably, before they start working), instead of by the third day of work.
7. Set shopping policies carefully.
While the retail sector generally enjoys a major profit boost during the next few days, the rest of the country’s businesses lose billions due to the productivity drop. (That’s the bad news. The good news is it might be less than you lost during James Comey’s testimony earlier this year, depending on how long your employees spend shopping.) And it's not just desk workers that you need to worry about anymore; Black Friday mobile shopping is expected to jump 45% from 2015.
Robert Half Technology has some stats on how your peers are handling the issue, and its senior executive director recommends that you ensure your “company's Internet policies are clear and communicated broadly to your organization to avoid security issues or decreases in productivity."