COVID-19: Stealing Time or Time Well Spent?
The impact of COVID-19 continues to fundamentally alter the American workplace. Remote workers are the norm, furloughs are unavoidable in certain sectors, and employers considered “essential” are struggling to maintain productivity whilst preserving a positive workplace culture.
These changes will carry over and impact the way workplace investigators do their jobs, too.
In this blog post, we explore how COVID-19 is on pace to change one common workplace investigation — employee time theft investigations.
What is employee time theft? Time theft occurs when an employee receives pay for time they did not work. Hourly workers are more prone to commit time theft, but it is not specific to any worker or industry.
Why are we likely to see an increase in employee time theft investigations? For some employers, shelter-in-place orders are to blame. Non-essential workers will be working from home, often for the very first time. Other businesses remain open. Those employers may be overwhelmed and struggling to respond to increased client demands. Consider these possibilities:
Emily starts working for her local grocer as a part-time delivery driver. The grocery store is inundated with online orders and requests for delivery because of COVID-19. Emily makes most of her deliveries. However, she also wastes 1-10 hours per week listening to podcasts while the truck is parked in coffee shop parking lots.
Andrew works as an hourly bookkeeper for a small CPA firm. Andrew, as well as the rest of the firm, is working from home due to COVID-19. Andrew’s boss notices a decline in Andrew’s efficiency. Andrew, nervous about the long-term viability of the firm, has been covertly developing his own business to launch once the pandemic ends. He is making calls, sending emails, and conducting videoconferencing meetings with potential clients – all while on the clock.
Randy works at a warehouse packaging goods for online delivery. Demand is high due to COVID-19. Randy’s supervisor is now too busy to monitor workers closely. Randy begins to fudge his time cards. He works less than he writes on his time cards. His favorite colleague, Jennifer, often clocks him in before he arrives to work.
How do workplace investigators need to investigate? These kinds of claims are easy to allege, but difficult to navigate. To investigate these matters properly, investigators need to utilize tailored and creative techniques. Remember, the key inquiry in these investigations is whether an employee misused his/her time and knew it. To help answer that question, investigators should be prepared to do the following:
Before conducting interviews, develop a thorough understanding of how COVID-19 changed the workplace. Workers may be understandably confused with how to report and document their time. An investigator must differentiate between workers who unknowingly misused their time, and those who did so purposefully.
Ask yourself whether the employer should keep the suspected employee on the payroll and surveil him/her before the investigation begins. The wrongful conduct may be easier to investigate after targeted surveillance.
Consider working in conjunction with the employer’s Information Technology staff to uncover time abuse in the form of improper internet usage, unauthorized use of employee email, and inappropriate use of company computers.
Audit the suspected worker’s time sheets and work logs. Compare them to similarly situated workers and analyze any discrepancies or irregularities.
Before conducting interviews, work with the employer to identify witnesses who may be complicit with the time theft and those who are not complicit. Wait to interview the complicit workers at the end, when you will likely have gathered more relevant information with which to confront those witnesses.
Workplace investigations will continue to change as the workplace evolves in response to COVID-19. It is crucial workplace investigators anticipate these changes to effectively conduct investigations that are neutral, timely, and thorough.
Matthew Rose is an Associate Attorney with Van Dermyden Maddux Law Corporation. His practice focuses on conducting workplace and Title IX campus investigations.
The foregoing is for informational purposes only and is not legal advice, nor should be construed as such.
