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This is easier said than done given the plethora of federal and state employment laws in the USA.
This blog article is no substitute for formal legal advice. However, below is a brief discussion of some common employment law questions, so that you can at least start a discussion with your local lawyer.
How should I classify my employees?
A frequent debate is whether a worker should be considered an employee, or an independent contractor. Hiring an employee involves tax obligations and various benefits, so it may be tempting to label a game master an independent contractor. This may be an option in some foreign countries/jurisdictions, but for the most part in the USA, a game master would be deemed an employee.
The IRS considers three main factors when classifying workers:
1) Behavioral Control
Whether the business controls what work is accomplished and how the work is done. Factors include: where the work is performed, who trains the worker, whose tools/equipment is used, and the flexibility of the worker’s schedule.
2) Financial Control
Whether the business controls the financial aspects of the worker’s job. Factors include: how the worker gets paid, whether the worker can realize a profit or incur a loss, whether the worker has invested in the facilities or tools he/uses to perform the services, the extent to which the worker has unreimbursed business expenses, and whether the worker makes his/her services available to the relevant market.
3) Relationship of the Parties
What type of relationship do the parties have? Factors include: how the relationship is described in written contracts, the permanency of the relationship, whether the worker is given employee-type benefits, and whether the worker’s services are a key aspect of the company’s regular business.
In a nutshell, an employee is a worker that performs services for your business, and you can control what/how/where/when the work is done. Gamemasters are typically employees because they work at your escape room premises, work the hours you schedule them, receive training from you, use your equipment, receive regular wages, etc.
By contrast, an independent contractor typically works to achieve a defined objective and has complete freedom regarding how to attain it. An example of an independent contractor in the escape room industry would be a website designer, whose one-time job is to make you a website.
How should I schedule my staff?
Escape room businesses do not operate like a typical 9-5 office, so scheduling can be difficult. Some owners choose to have staff on site full-time and give them other tasks to do if there are no active games. Others have game masters come in only when there are games booked. Let’s start with a few definitions:
When a worker spends all of his/her available working time at your business. Typically this means an average of at least 30 hours per week.
When a worker only spends a portion of his/her available working time at your business. The Bureau of Labor Statistics defines part-time status as working an average of 1-34 hours per week. Part-time hours are common for seasonal, and project-based jobs.
When a worker is not actually performing job duties but must be available to work if called upon.
When workers are assigned tentative shifts, but they have to call-in or are notified shortly before the shift begins whether they are actually needed.
When a worker reports to work but is sent home due to lack of available work.
When an employee works extra time in addition to his/her normal working hours.
Scheduling practices that allow you to cancel or schedule shifts as needed look very attractive to escape room owners because they are loathed to see game masters sitting around when there are no games. However, you should be aware that there are often laws regulating scheduling in order to ensure workers are given enough work/pay to support themselves. Requirements vary federally, and by state, by some common rules include:
- On-Call: According to the U.S. Department of Labor, an employee that is required to remain on/near the premises and cannot use his/her time freely must be compensated. In most cases, an employee must be paid at least minimum wage while he/she is on-call.
- Reporting to Work: in some places an employee that reports for work must be paid for a minimum number of hours (regardless of if they go home early). For example, in New York, an employee that reports for work must be paid for at least four hours of work.
- Canceled Shifts: In many cases, if a shift is canceled (especially at the last minute) you have to pay an employee anyway. For example, in California employers pay employees at least half of all scheduled shifts, even when canceled.
- Call-In: Sometimes employees that are required to check-in before the start of a shift to confirm whether to report to work must still be paid for a set number of hours. For example, in New York, the employee must be paid for at least four hours of work.
Conversely, there are regulations to ensure that workers do not work too much and/or compensated for extra work.
- Overtime: The Fair Labor Standards Act (FLSA) requires that non-exempt employees (those who earn less than $455 per week or $23,660 per year and are not executives/professionals) receive overtime pay. Employees are entitled to overtime pay any time they work over 40 hours in a single workweek (one period of 168 hours, or seven consecutive twenty-four hour periods). You must pay at least one and one-half times the employee’s regular hourly rate.
- Meal and Rest Breaks: Some states require, and many employers choose to offer meal and rest breaks. These breaks can be paid or unpaid depending on the jurisdiction. In general, rest periods (usually 5-20 minutes long) are often counted as hours worked. However, meal periods when an employee is completely relieved from duty in order to eat (usually 30 minutes or more) are often unpaid.
What kinds of benefits can I offer my employees?
There is a wide variety of mandatory and discretionary employee benefits, and the same will vary based on your jurisdiction. However, below are some of the common employee benefits:
The majority of jurisdictions require businesses to provide workers’ compensation insurance to cover medical expenses/lost wages if the employee is injured as a result of his/her employment. Typically workers waiver their right to sue, and instead receive automatic compensation regardless of who is at fault for the injury.
Many employers offer medical insurance, which covers non-work related injuries/illnesses. Employers usually pay all or part of the premium for employee medical insurance, and sometimes the coverage extends to the employee’s family members.
Many employers choose to pay employees while they celebrate national holidays. Typical paid holidays in the USA include Christmas Day, New Year’s Day, Thanksgiving Day, Memorial Day, Easter, Independence Day, and Labor Day.
The majority of employers have some kind of vacation day scheme. Often, employees earn/accrue vacation days based on the number of hours worked. Sometimes there are restrictions on vacation days, for example, an employee may have to be with the company for a certain length of time before earning vacation days, or an employee may not be allowed to take vacation during the company’s busy season. It is also common that employers are required to pay employees for accrued but unused vacation days when the employee is terminated.
Some jurisdictions require unpaid sick leave, and many employers choose to provide sick leave (typically 7-10 sick days). A few states even have paid sick leave, such as Connecticut, California, Massachusetts, Oregon, Vermont, Arizona, and Washington. Federally, if your employees are subject to the Family and Medical Leave Act (FMLA), they are entitled to 12 weeks of unpaid leave, job-protected leave, for certain medical situations affecting them or a member of their immediate family. In order to qualify, the employee must work for a company with at least 50 employees within 75 miles, been with the company for at least 12 months, and worked at least 1,250 hours over the previous 12 months.
What are some other employment laws to be aware of?
Occupational Safety and Health Act (OSHA)
OSHA is the act/agency that governs safety and health issues in the workplace. The act requires that workplaces be free from recognized hazards that are likely to cause death/serious physical harm. OSHA publishes and enforces various standards to maintain workplace safety, for example, standards for providing personal protective equipment, preventing exposure to infectious diseases, providing fall protection, and preventing exposure to harmful substances.
Title VII of the Civil Rights Act
This section of the Civil Rights Act prohibits discriminatory employment/hiring practices. It generally applies to companies with 15 or more employees and ensures that certain protected classes are treated fairly. Protected classes include race, color, age, biological sex, creed or religion, citizenship, national origin, genetic information, veteran status, and physical/mental disabilities.
Americans with Disabilities Act (ADA)
The ADA prohibits employers from discriminating against qualified candidates due to their physical/mental disabilities and requires employers to provide reasonable accommodations for disabled persons.
Click here to read our full length article about escape rooms and the ADA.
The Employee Retirement Income Security Act (ERISA)
This Act regulates employers who offer pension or welfare benefit plans for their employees. The Act provides guidelines on how to administer employee benefit plans, including notification requirements.
Hopefully, this article has given you a better understanding of some key American employment laws. Keep them in mind during your hunt for great staff!
More Legal Resources for Escape Room Owners
- Zachary Strebeck – Attorney at Law: Starting an Escape Room Business
- IRS Tax Topic Number 762 – Independent Contractor vs. Employee
- Bureau of Labor Statistics: Full- or part-time status
- New York State Department of Labor: Employee Scheduling Regulations
- U.S. Department of Labor Wage and Hour Division Fact Sheet #22: Hours Worked Under the Fair Labor Standards Act (FLSA)
- U.S. Department of Labor Wage and Hour Division: Overtime Pay
- U.S. Department of Labor General Topics: Breaks and Meal Periods
- U.S. Department of Labor General Topics: Workers’ Compensation
- State of California Department of Industrial Relations Division of Labor Standards Enforcement: Reporting Time Pay
- U.S. Department of Labor Wage and Hour Division: Family and Medical Leave Act Employer Guide
- HealthCare.Gov: How the Affordable Care Act affects small businesses
- U.S. Office of Personnel Management Fact Sheet: Sick Leave
- Occupational Safety and Health Administration: All About OSHA Booklet
- U.S. Equal Employment Opportunity Commission: Title VII of the Civil Rights Act of 1964
- U.S. Equal Employment Opportunity Commission: Facts About the Americans with Disabilities Act
- ADA.gov A Guide to Disability Rights Laws
- U.S. Department of Labor Health Plans & Benefits: ERISA
Laura Kendall is the Co-Founder and Marketing Director of EscapeAssist Software. The EscapeAssist team has designed an all-in-one escape room software—game manager, booking system, website builder, digital waiver, leaderboard, and automatic player follow-up all in one app! Laura is a licensed California attorney with experience in various areas of law, including civil litigation, employment, insurance defense, and intellectual property. She is an escape room enthusiast who has played over 50 games around the world. Laura is very active in the escape room industry as a blogger, top Quora writer, and contributing author for the escape room trade magazine “The Last Lock.”