Ikedi O. Onyemaobim
Ikedi O. Onyemaobim
Associate, Los Angeles
Formerly: Crew Member at Dairy Queen
Education
  • B.A., Political Science, West Chester University of Pennsylvania, summa cum laude;
  • J.D., Pepperdine University School of Law;

West Philadelphia, born and raised; I’ve always had dreams of making it in L.A. Years of hard work and look what I’ve done—made it to the land of sand and sun.

During my time at West Chester University of Pennsylvania, I spent most of my days buried under books in the library. In between study sessions, I could be found playing for the University’s men’s ice hockey and lacrosse teams. Later, while attending Pepperdine University School of Law, I served as Editor-In-Chief of the Journal of Business, Entrepreneurship, and the Law. I also competed in the American Bar Association’s National First Amendment Media Law Moot Court Competition, where I won the competition, was awarded Best Brief, and earned the distinction of Best Oral Advocate.

As a young attorney, I bring a unique perspective to the table: I understand what it means to be an employer and an employee. My first job was at a Dairy Queen in Pottstown, Pennsylvania, I spent nearly a decade working in the retail industry, and I successfully launched a Los Angeles-based athletic apparel line. My retail and hospitality experience, coupled with my experience as a business owner allows me to recognize the hurdles Stokes Wagner’s clients face in the hospitality industry. In short, I am no stranger to the intricacies of employment relationships, and I appreciate that preventative measures help our clients move forward seamlessly and successfully.

When I’m not at the office, you can find me playing ice hockey and lacrosse with my brothers, snowboarding, riding my motorcycle, or slowly building my vintage record collection.

On September 6, 2017, in Marsh v. J. Alexander’s, LLC, the Ninth Circuit refused deference to the United States Department of Labor’s (the “DOL”) 80/20 Rule, which interprets the “tip credit” under the Fair Labor Standards Act (“FLSA”). The Ninth Circuit held that the 80/20 Rule is inconsistent with the FLSA because the Rule improperly focuses on an employee’s individual duties, rather than an employee’s distinctive dual positions.

The FLSA requires all employers to pay their employees an hourly minimum wage of $7.25. However, the FLSA also provides a special provision for “tipped employees,” who are engaged in an occupation in which they customarily receive more than $30 in tips each month. Under this provision, an employer may claim a “Tip Credit” against the minimum wage for tipped employees. In effect, the Tip Credit, which is commonly applied by employers in the food and hospitality industries, employers may pay their tipped employees $2.13 hourly. With respect to employees who work for the same employer in “dual jobs” (where one position is tipped, and the other is not), an employer is prohibited from applying the Tip Credit for any hours the employee works in a non-tipped position. However, an employer may still apply a tip credit when an employee performs duties related to the tipped position. In an effort to conceptualize the application of the Tip Credit to dual jobs, the DOL outlined the 80/20 Rule, which requires that an employee be paid the full minimum wage for all work “related” to tipped work if such work exceeds 20 percent of the employee’s weekly hours.

In Marsh, the Ninth Circuit evaluated the application of the 80/20 Rule in nine consolidated cases brought by servers and bartenders. The named plaintiff explained that he was a tipped employee, but he alleged that he spent more than 20 percent of his work week performing the responsibilities of a non-tipped position (brewing coffee, cleaning soft drink dispensers, stocking ice, etc.). Accordingly, the Plaintiff argued that his employer violated the 80/20 Rule because he applied a credit for all the hours the Plaintiff worked, even when performing related side duties that did not earn tips.

The Ninth Circuit refused to apply the 80/20 Rule, explaining that the Rule improperly created a new regulation that interfered with a proper analysis of dual jobs. The Court explained that under the 80/20 Rule, an employer is required to track every moment of an employee’s duties to determine when a tip credit properly applies. This strays from the original dual job analysis, which only looks to circumstances where an employee holds two distinct positions, rather than reviewing the employee’s individual duties.

What does this mean for you?  The Ninth Circuit created a circuit split with respect to the application of the 80/20 Rule. For employers within the Ninth Circuit (Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington), the Court has held that the tip credit properly applies to employees with dual jobs, without necessarily outlining the employee’s individual duties. As such, employers in these states are not required to track the duties an employee performs to analyze under the 80/20 Rule.

For more legal updates, check out our update for September 2017!

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On July 17, 2017, the United States Citizenship and Immigration Services (“USCIS”) released a revised Form I-9.

While the revised form does not change storage and retention rules, it does include subtle changes to the form’s instructions. For instance, the instructions to Section 1 have been revised to remove “the end of” from the phrase “the first day of employment.” Also, the form introduces a new name for the Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices: The Immigrant and Employee Rights Section.

The most notable change to the Form I-9 relates to USCIS’s List of Acceptable Documents, which has been revised to reflect the most current version of the certification of report of birth issued by the U.S. State Department. Specifically, the new Form I-9 compiles all birth certificates issued by the State Department (Form FS-545, Form DS-1350 and Form FS-240) into selection C#2 in List C. The revised form also renumbers all List C documents, except the Social Security card.

The USCIS has also added the Consular Report of Birth Abroad (Form FS-240) to List C, which is issued to employees born overseas to parents who are American citizens. Employers completing the Form I-9 online will now be able to select Form FS-240 from the List C Section 2 and Section 3 drop-down menus. Also, employers using E-Verify will be able to access Form FS-240 when creating cases for employees who present this form to verify employment eligibility.

What does this mean for you? Effective September 18, 2017, all employers must begin using the new Form I-9. For now, employers will be able to use the revised version or continue using Form I-9 with a revision date of 11/14/16 until September 17, 2017. Failure to comply by the September 18, 2017 deadline may result in fines.

For more legal updates, check out our update for September 2017!