Employers are no longer barred from taking the tip credit for tipped employees who spend more than 20% of their time doing non-tipped activities, according to a new U.S. Department of Labor opinion letter doing away with the so-called “80/20 rule.” As restaurant and hospitality employers are aware, the tip credit provision in the Fair Labor Standards Act permits an … Continue Reading
Category Archives: Wage & Hour
Subscribe to Wage & Hour RSS FeedRestaurant Industry Takes On Tip Credit “80/20 Rule”
A restaurant advocacy group has sued the Department of Labor challenging its “80/20 Rule,” which limits the use of a tip credit wage where workers spend more than 20% of their time doing work not directly related to tip-generating activities.
The Restaurant Law Center, a public policy affiliate of the National Restaurant Association and the Texas Restaurant Association, has filed … Continue Reading
Congress and the Trump Administration Cannonballs into the Tip Pool
Buried in the 2,232 page omnibus budget bill recently signed by President Trump was an important change regarding the use of tip pools. Employers who do not take a tip credit are not required to police their employees to determine if their tip pool includes “back of the house” employees, which would have previously been unlawful. However, an employer may … Continue Reading
DOL Again Offers Opinion Letters to Employers
Employers will once again have another source of guidance on wage and hour issues from the U. S. Department of Labor, which last month reinstated the practice of issuing opinion letters. The DOL stopped issuing opinion letters during the Obama administration, and instead switched to a practice of offering Administrator’s Interpretations (AI), which have broader applicability. Employers, who can rely … Continue Reading
The Nation’s Employers Just Got PAID
Employers who would like to work with the Department of Labor to correct potential wage and hour violations before they get sued may get their wish: the DOL has launched a Payroll Audit Independent Determination (PAID) program. The agency has invited all employers covered by the Fair Labor Standards Act to consider participating in this six-month pilot program. However, … Continue Reading
Supreme Court Expands Interpretation of Overtime Exemption
Employers may have a bit more flexibility in determining which employees are exempt from overtime following a U.S. Supreme Court ruling issued this week that specifically rejected the decades-old principle that exemptions under the Fair Labor Standards Act (FLSA) should be “narrowly construed.” In a 5-4 decision, the Supreme Court ruled in Encino Motor Cars, LLC v. Navarro that an … Continue Reading
Just A Tip: DOL One Step Closer To Rescinding Tip Pooling Regulation
Good news for restaurant employers: the regulation that says tips belong to the employee – regardless of whether the employer takes the tip credit or pays the full minimum wage — may soon be history. Last week, the Department of Labor took another step toward rescinding the 2011 regulation by submitting a proposed rule to the Office of Management and … Continue Reading
Disasters and the Workforce: Navigating Stormy Waters
Thousands of Florida coastal residents were ordered to evacuate last week in anticipation of Hurricane Irma, even as their employers remained open. A pizza restaurant manager made headlines when he threatened action against employees who chose to miss shifts to evacuate. Other employers instructed employees not to report and planned to close their offices part of this week. What are … Continue Reading
EEO-1 Pay Data Collection Form Nixed for Now
Employers that have been struggling with whether to undertake the arduous task of assembling the 2017 pay data required by the new EEO-1 form can breathe a sigh of relief: the Office of Management and Budget (OMB) has nixed it for now. … Continue Reading
Predictive Scheduling and the Fight for a “Fair Workweek”: What Employers Need to Know
Retailers and fast food companies in particular should be aware of the growing push for “fair workweek” legislation at the city, state, and federal levels. In just the past few years, over a dozen states and cities have considered enacting such laws, which are designed to ensure that employees are given consistent, predictable schedules. (They have therefore also been termed … Continue Reading
DOL Drops New Salary Regulation
The Department of Labor is abandoning the new salary regulation that set a $47,476 threshold salary for employees to be exempt from overtime and intends to go back to the drawing board, based on a brief filed by the DOL on June 30, 2017.
The regulation, which more than doubled the current salary threshold, would have made an estimated 4 … Continue Reading
DOL: “Joint Employer” and “Independent Contractor” Guidance Out and Wage and Hour Opinion Letters In
On the heels of withdrawing published interpretations of the concepts of “joint employer” and “independent contractor,” the Secretary of Labor announced yesterday that it will reinstate the issuance of opinion letters. Opinion letters are official, written opinions by the Wage and Hour Division that explain how a law applies to specific sets of facts. In 2010, the Obama administration discontinued … Continue Reading
Bill Permitting “Comp Time” in Lieu of Overtime Heads to Senate
A Republican proposal to allow private employers to offer employees compensatory time off in lieu of paying overtime at time–and–a–half their regular rate has been approved by the U.S. House of Representatives and next moves to the Senate for consideration. The “Working Families Flexibility Act of 2017’’ (H.R. 1180) would amend the Fair Labor … Continue Reading
New, Even Broader, Joint Employer Test Adopted
Employers may think the concept of joint employer being pushed by the National Labor Relations Board (NLRB) is overly broad, but a recent decision by a federal appellate court in Richmond, Virginia adopts the most expansive definition yet. Last month the federal appellate court pronounced that two entities or individuals should be considered a joint employer of the same worker … Continue Reading
State and Local Governments: Battling for Control of Workplace Laws
While local governments are increasingly seeking to regulate the workplace, many states are taking aggressive action to counter these efforts. Over the past several years, more than 20 states have enacted preemption laws which prevent such localities from increasing the minimum wage, expanding anti-discrimination protections, requiring employers to provide paid sick leave, and regulating employee meal breaks and rest periods. … Continue Reading
States May Step Into Void Created by Demise of DOL’s Overtime Rule
Since the Department of Labor announced the new overtime rule last May, we have been closely following its rocky implementation in a series of posts. Presently, the rule – which would render an estimated 4 million workers eligible for overtime by effectively doubling the salary threshold for exempt employees to $47,476 – remains stayed by a federal court in … Continue Reading
Employer Exposure Increases: Emotional Distress Damages in FLSA Cases
The number of federal courts allowing plaintiffs to recover emotional distress damages in Fair Labor Standards Act (FLSA) retaliation cases is expanding, with the Fifth Circuit Court of Appeals last month joining two other circuits that have permitted such damages. The case Pineda v. JTCH Apartments, L.L.C. (5th Circuit December 19, 2016), involved maintenance employee Santiago Pineda, who lived … Continue Reading
Minimum Wages Climb
Workers will now receive higher minimum wages mandated by state law in 19 states, effective this month. Florida’s minimum wage increased to $8.10 an hour from $8.05 an hour, effective January 1. Tipped employees in Florida are now entitled to receive a minimum of $5.08 an hour. Workers in Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Hawaii, Maine, Massachusetts, Michigan, Missouri, … Continue Reading
The New Salary Regulations: The Saga Continues
While employers took solace from the Nov. 22 nationwide preliminary injunction which blocked implementation of a controversial rule increasing the salary threshold for employees to be exempt from overtime, the battle is not over. The Department of Labor filed its notice of appeal December 1, the same day the new salary regulations were to take effect.… Continue Reading
Employers Can Be Thankful: New Salary Regulation Delayed
Providing employers with a piece of good news, a Texas court has issued a nationwide preliminary injunction that delays the December 1 implementation of the controversial final rule that increased the salary level for exempt employees to $47,476, more than double what it had been. The court found that the 21 states challenging the rule showed both that they were … Continue Reading
Opt-Out Clauses May Help Some Employers Opt In To Individual Arbitration
Ironically, giving employees the right to decline to resolve their employment claims in binding arbitration may actually help employers enforce arbitration agreements in some parts of the country.… Continue Reading
Hope for Employers: Court Says Home Health Aides Can’t Bring Collective Action
Courts have been quick to allow one employee claiming to be due overtime to sue on behalf of others in the same job category by certifying a collective action, allowing that employee to represent the class and requiring the employer to provide contact information for others in the same job category. However, in a case with potentially far reaching implications … Continue Reading
Long-Awaited New Overtime Rule Issued
Beginning December 1, 2016 employers will have to pay “white collar” workers a salary of $47,476 ($912 a week) and ensure that they meet certain job duties tests established by law or else pay them overtime, under new regulations issued this week by the U.S. Department of Labor. Bonuses and commissions can count toward as much as 10 percent of … Continue Reading
New York State Increases Minimum Wage and Enacts Paid Family Leave
For employers with employees in New York State, the cost of doing business in the state is going to go up due to recent legislation. New York State recently passed the following two important changes in the law which will impact all employees in the state: (a) an incremental increase in the minimum wage, and (b) paid family leave.… Continue Reading
