An Atlanta native, I happily took my first job in a restaurant in Atlanta, Georgia where I worked as a hostess, server, and bartender throughout college. After graduating from law school, I launched my legal career at an international law firm where I represented clients ranging from individuals and small business owners to international automotive companies and manufacturers. Throughout my career, I have advocated for clients in various civil matters including commercial and real estate contract disputes, partnership disputes, business torts and trade secrets, employment litigation, and intellectual property litigation. Returning to my hospitality roots, my practice now focuses on defending and counseling primarily hospitality clients in employment matters. I have been fortunate to learn from some of the best and brightest legal minds in the country and look forward to sharing my personal experiences with the hospitality industry and the legal expertise I have developed since the beginning of my career.
I also recently co-founded a 501(c)(3) non-profit organization called Power Suit Project (PSP) whose mission is to provide opportunities for Atlanta women to build lifelong meaningful professional relationships with other women. Through my role as CEO and President of PSP, I have learned invaluable management, operational, and “people” skills that I look forward to sharing with my clients. While PSP has certainly made me a better businesswoman and lawyer, the most rewarding part of my role with PSP is having the opportunity to inspire and mentor other women.
April 30, 2018 • Ashley S. Nunneker
Category: Legal Updates
In 2011, the U.S. Department of Labor (“DOL”) introduced regulations affirming that tips are the property of the employee regardless if the employer uses a tip credit under the FLSA. Under this framework, only “customarily tipped employees” can receive distributions from a company tip pool. Tip pools set up by employers to include employees who are not regularly tipped employees are invalid. This limitation applies even where the employees contributing to a tip pool are paid the applicable minimum wage. Moreover, employers and management staff are precluded from receiving any portion of tip pools under the current regulation. The 2011 regulation has led to voluminous litigation over what constitutes a “customarily tipped employee” and has resulted in inconsistent rulings from various courts.
The DOL under the Trump administration has proposed a change to the 2011 regulation that would eliminate many of the restrictions on an employer’s use of tip pools. The proposed change would allow employers to include non-tipped employees in tip pools, including back-of-house employees who have little to no interaction with customers and even management staff or business owners.
What does this mean for you? The proposed regulation would apply only to employers who pay its tipped employees at least the federal minimum wage. Employers who continue to take advantage of the tip credit and pay tipped employees lower than the minimum wage would still be subject to the 2011 regulation’s restrictions on sharing of tips.
The DOL’s public comment on the proposed changes to the 2011 regulation closed in February 2018, and the DOL is expected to present a proposed regulation in the coming months. Stokes Wagner will keep you updated. Stay tuned!
For more legal news, check out our quarterly update for April 2018!
October 30, 2017 • Ashley S. Nunneker
Category: Legal Updates
An amendment to the New York City Human Rights Law, effective October 31, 2017, prohibits New York City employers from considering job applicants’ salary histories. Here are the details:
The Amendment Prohibits Employers From:
- Inquiring about an applicant’s salary history; or
- Relying on an applicant’s salary history when making decisions about an applicant’s salary at any time during the hiring process.
What Does “Inquire” Mean? Employers may not ask an applicant or their former or current employers about the applicant’s salary histories, nor may they search public records to obtain information about an applicant’s salary history, unless the job applicant is a current employee of the employer.
What is “Salary History?” The law defines “salary history” broadly to include wage, benefits, equity, deferred compensation, and any other forms of compensation.
What Can Employers Do? - Consider salary history if the applicant’s disclosure is made “voluntarily and without prompting;”
Consider prior salary and compensation of current employees seeking promotions or transfers;
Ask about an applicant’s salary expectations;
Discuss the anticipated salary range for the position;
Discuss benchmarks for compensation, such as revenue or sales goals; and
Discuss whether the applicant will forfeit equity or deferred compensation by taking the position.
Penalties for Noncompliance A violation of this new law may automatically be deemed an unlawful discriminatory practice. An applicant’s rights under this new law may be enforced before the New York City Commission on Human Rights or in court. Pursuant to the New York City Code, a civil penalty for an unlawful discriminatory practice may be imposed of up to $125,000 for unintentional violations and up to $250,000 for willful and malicious violations. A successful plaintiff in a civil lawsuit may recover back pay, front pay, compensatory damages and attorney’s fees.
Are You in Compliance? Stokes Wagner recommends that you review all job postings, applications (paper and digital), and hiring documents to ensure removal of any and all inquiries regarding salary history. You should also inform all employees involved in the hiring and recruiting process of the parameters of the new law, especially third-parties or outside vendors who participate in the hiring process on behalf of the employer.
Questions? Feel free to call us to discuss your hiring process and ensure compliance with this new law.
The City of New York enacted the following bills affecting fast-food employers, effective November 26, 2017:
No More “Clopening.” Employers are banned from scheduling employees to work consecutive night and morning shifts with fewer than 11 hours between shifts. If the employer requests an employee to “clopen,” the employer must pay an additional $100. There is an exception for employees who request to “clopen” (Intro. 1388).
Current Employees Are Favored. Employers must offer all available work hours to current employees until interested employees are required to receive overtime pay, or until all current employees have rejected the available hours, whichever comes first (Intro 1395).
Fair Workweek. Employers must provide employees with an estimate work schedule upon hire and provide regular 7-day work schedules with 14 days’ advanced notice. Employers must also pay a premium when making a scheduling change.
$10 for each shift added with less than 14 days’ notice but at least 7 days’ notice.
$15 for each shift added with less than 7 days’ notice.
$20 for each shift cancelled or subtracted, with less than 14 days’ notice but at least 7 days’ notice.
$45 for each shift cancelled or subtracted with less than 7 days’ notice, but at least 24 hours’ notice.
$75 for each shift cancelled or reduced less than 24 hours before the shift.
Contact Stokes Wagner for details about premium pay mandates and exceptions (Intro. 1396).
Payroll Deductions. Employers must provide employees with the ability to make voluntary contributions to eligible non-profit organizations through payroll deductions. The law establishes a minimum contribution of $6 per biweekly paycheck and $3 per weekly paycheck to minimize burden to employers (Intro. 1384).
For more legal updates, check out our update for September 2017!