DOL’s Final Rule on Tipped Employees Takes Effect December 28th

Posted in Employee Handbooks & Policies, Employment Counseling & Workplace Claims Prevention, Wage & Hour

Beginning December 28, 2021, employers must pay tipped employees the full minimum wage for periods when non tip-producing work is performed for a substantial amount of time, in light of a new Department of Labor (DOL) Final Rule taking effect that date. To comply with the rule, employers should revisit their current policies regarding how tipped employees are compensated and ensure that they carefully track how tipped workers spend their time.


A tip credit allows an employer the opportunity to satisfy a portion of its minimum wage obligation to a tipped employee by taking a partial credit toward the minimum wage based on the amount of tips an employee receives, provided that the employer meets certain requirements. Please note that the references to minimum wage requirements in this article are based on the federal minimum wage; many states and localities have higher minimum wage requirements that must be honored. In addition, some states may not allow for a tip credit at all. Continue Reading

The Ramifications of College Athletes Being “Employees”

Posted in Employment & Consulting Contracts, Employment Counseling & Workplace Claims Prevention, Employment Litigation

Consider this: the General Counsel of the National Labor Relations Board has opined that some student-athletes at the collegiate level are “employees” for purposes of the right to engage in protected concerted activity, and the U.S. Supreme Court has found that student athletes are entitled to certain compensation. So, if student athletes have new rights under federal law, might others as well?

These trends in college athletics may have far-reaching implications. Jennifer Abruzzo, the General Counsel of the NLRB has opined that some student athletes are employees and are entitled to “Section 7” rights under the National Labor Relations Act. Abruzzo’s recent Memorandum, which announced that certain student-athletes are “employees” under the NLRA, touched on trends that could have an impact on all employers in every industry.  Specifically, the Memorandum hinted at expansion of Section 7’s scope, and also reiterated the GC’s position that misclassifying employees is an independent violation of the NLRA. Continue Reading

Biden Administration Unveils Long-Awaited COVID-19 Rules For Large Employers and Healthcare Workers

Posted in Employee Handbooks & Policies, Employment Counseling & Workplace Claims Prevention, Workplace Safety & OSHA

The wait is over for employers seeking clarity on the details of the Biden Administration’s vaccine and testing rules for private employers, first announced by President Biden in early September and now slated to take effect in part by an initial compliance date of December 6, 2021, with remaining requirements effective alongside federal contractor vaccine requirements on January 4, 2022, as set forth below.

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Increased OSHA Activity Should Serve as a Warning to Employers: Adopt Safety Policies AND Enforce Them

Posted in Employment Counseling & Workplace Claims Prevention, Workplace Safety & OSHA

OSHA has put employers on notice that they cannot succumb to COVID-19 burnout, and must remain vigilant when it comes to worker safety protocol. The United States Occupational Safety and Health Administration has recently increased the issuance of citations against employers for failing to following COVID-19 health and safety guidelines. Employers should be aware of this increase in enforcement and take steps to actively comply with all OSHA rules and guidance relating to COVID-19, including both the adoption and enforcement of safety rules in the workplace. In October 2021 alone OSHA has issued at least three citations to employers based on the failure to comply with OSHA’s general duty clause. The citations reprimanded the employers for ignoring safety requirements and failing to furnish a place of employment free from recognized hazards that are causing or likely to cause death or serious physical harm to employees.

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Objections to COVID-Testing and Asking Vax Status Up Front: Best Practices

Posted in Employment Counseling & Workplace Claims Prevention, Employment Discrimination Harassment & Retaliation, Workplace Safety & OSHA

Employers are being inundated with employee requests for exemptions, not just from mandatory vaccination policies, but also from policies requiring regular COVID-19 testing. How do employers square their duty to provide a safe workplace with the duty to try to accommodate employees who refuse even to be tested? And can they avoid some of the headaches by asking applicants about their vaccination status up front? We look at both of those questions in the context of EEOC guidance updated October 25, 2021 and offer some tips.

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Handling Requests for Religious Exemptions from Mandatory Vaccination Policies

Posted in Employee Handbooks & Policies, Employment Counseling & Workplace Claims Prevention, Employment Investigations & Audits, Employment Litigation, Medical & Other Leaves

Employers implementing mandatory COVID-19 vaccine policies are facing an avalanche of requests for exemptions as religious accommodations, far more than for medical exemptions. Fortunately, while employers are generally obligated to explore accommodations for requests based on a sincerely held religious belief, they are not necessarily obligated to grant exemptions.

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Federal Contractors Face Dec. 8 Vaccination Deadline

Posted in Employment Counseling & Workplace Claims Prevention, Workplace Safety & OSHA

Federal contractors covered by President Biden’s recent Executive Order 14042 must ensure that covered employees are fully vaccinated for COVID-19 no later than December 8, 2021, subject to applicable exceptions, pursuant to new Guidance published by the Safer Federal Workforce Task Force (Task Force). The Guidance was issued pursuant to President Biden’s COVID-19 Action Plan and Executive Order 14042, which we blogged about last month. All new covered contracts entered into on or after October 15, 2021 must incorporate the terms of the Guidance.

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Appellate Ruling Clouds California’s Ban on Mandatory Arbitration Clauses in Employment

Posted in Employment Counseling & Workplace Claims Prevention, Employment Litigation

Employers in California may not condition employment on entering into an arbitration agreement, but at the moment, it appears they may continue to enforce such agreements. The situation is muddled as a result of a federal appellate court ruling blocking a 2019 California law that made it illegal for an employer to condition employment or “any employment-related benefit” on entering into an arbitration agreement. On September 15, 2021, the Ninth Circuit Court of Appeals, which reviews the decisions of federal district courts in the nine westernmost states, including California, vacated a district court injunction blocking the 2019 law, known as Assembly Bill (AB) 51. The U.S. Chamber of Commerce, in concert with six other business groups, filed the suit shortly before it was set to take effect on January 1, 2020 seeking to have the law struck down on the grounds that it is preempted by the Federal Arbitration Act (FAA). The district court entered a temporary restraining order on December 30, 2019, and later a preliminary injunction on February 7, 2020, blocking the law from taking effect. The state then appealed.

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Reminder: Promptly Investigate Harassment Complaints

Posted in Employment Counseling & Workplace Claims Prevention, Employment Discrimination Harassment & Retaliation

Even though the COVID-19 pandemic and its impact on the workplace has dominated the headlines recently, employers should be careful not to delay investigating non-pandemic-related complaints—particularly those of harassment. Failing to promptly investigate and correct harassing behavior can be costly. Based on a recent federal appellate court ruling, a month between complaint and action may not be prompt enough.

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