It’s no secret within the hospitality industry that restaurants and hotels have thin profit margins, averaging only 3-5%. With the two largest expenses being fixed rent and variable labor, it is not uncommon for venues to focus on labor costs. This undoubtedly explains the growing trend to evaluate outsourcing certain positions. Outsourcing aims to eliminate overtime and the cost of employee benefits while responding to business level fluctuations in real-time. But, if the outsource process is mismanaged, it may create more problems than it solves. These are our top 5 prevention tips to avoid problems.
Another Win for Mandatory Arbitration Agreements
April 16, 2019 • Jacqueline A. Godoy
Category: Legal Updates
Even in California, where the courts have resisted sending employee claims to arbitration, the tide is turning in favor of mandatory employment arbitration agreements. The California Court of Appeals for the Second Appellate District reversed the decision of Los Angeles Superior Court judge William Fahey denying the employer’s petition to enforce its arbitration agreement.
What’s on Your Mind? How Facebook Statuses Can Make or Break Litigated Cases
April 8, 2019 • Shirley A. Gauvin
Category: Legal Updates
With the popularity of Facebook and the widespread use of social media by employees, it probably comes as no surprise that experts believe a person’s Facebook status update offers interesting (and usually obvious) insight about his or her personality. Some people tend to share photos of their travel adventures or culinary skills while others post primarily about the political issues of the day or their kid’s latest athletic competition. For the reader, status updates can be interesting, fun and educational. They can also be dangerous traps for the unwary when they consist of unrestrained rants targeting an employer. Certainly, “concerted activities” for the purpose of mutual aid or protection are permitted and protected by the National Labor Relations Act; therefore, posts consisting of complaints concerning working conditions or worker’s rights will typically not support termination of the employee. However, before “going off” on an employer on social media, or tolerating the same by your employees, remember that such posts may be viewed as offensive and unprotected, supporting a legal termination.
DOL's New Joint Employer Proposal Brings Clarity and Good News for Businesses
April 4, 2019 • Shirley A. Gauvin
Category: Legal Updates
Joint employer status has long been a hot topic and is seemingly a moving target depending on which agency or jurisdiction is evaluating the status. In a move to reduce uncertainty over joint employer status, promote greater uniformity among court decisions, reduce litigation, and encourage innovation in the economy, on April 1, 2019, the U.S. Department of Labor (“DOL”) proposed a four-part test to replace existing regulations that determine joint employer status under the Fair Labor Standards Act (“FLSA”). While the proposal was favorably received by managers/employers, it sparked criticism from the plaintiffs’ attorneys, who accused the DOL of ignoring precedent that interpreted joint employment broadly.
Beauty Comes in Many Forms: Eliminating Inherent Racial Bias in Employer Grooming Standards
March 29, 2019 • Benjamin J. Herold
Category: Legal Updates
Last month, the New York City Commission on Human Rights released new guidelines (available here) that explicitly protect “the rights of New Yorkers to maintain natural hairstyles that are closely associated with their racial, ethnic, or cultural identities.” Penalties for employers include fines up to $250,000 per infraction with unlimited civil damages.
Employers in New York City now have additional requirements for their employee lactation rooms and lactation policies.
Like a Phoenix, the Ninth Circuit’s Salary Consideration Standard Rises from the Ashes
March 7, 2019 • Rachel Zisek
Category: Legal Updates
Pay equity has taken center stage among the wide array of workplace issues receiving news coverage and public prominence in recent years. Companies and courts alike are trying to determine how to ensure that men and women are paid fairly in connection with their work and experience. The question of how to address pay equity has created such clamor and divergence that the United States Supreme Court decided to review the Ninth Circuit’s interpretation of the law in Fresno County Superintendent of Schools v. Rizo, Case No. 18-272. However, in a shocking twist, the Supreme Court vacated the underlying case from the Ninth Circuit Court of Appeal on February 25, 2019, in light of the death of Ninth Circuit Justice Stephen Reinhardt.
DOL Raises FLSA Overtime Exemption for White Collar Workers
March 7, 2019 • Adam L. Parry, Jamie Santos
Category: Legal Updates
More employees will now be considered non-exempt, as the U.S. Department of Labor raised the minimum salary threshold for workers to qualify for the Fair Labor Standards Act’s “white collar” exemption. In replacing an Obama administration rule, the new proposal would raise the salary threshold requirement from $23,660 to $35,308 per year. As a result, more employees will be subject to compensation for any time exceeding 40 hours in the workweek.
Federal Court of Appeals Clarifies Background Check Disclosure Requirements for Employers
March 4, 2019 • Adam L. Parry, Christina Tantoy
Category: Legal Updates
Does your company still perform background checks on employees? If you answered yes, then the Ninth Circuit’s recent ruling on background check disclosures applies and you should review your company’s background check disclosures immediately.
Password Protected: Shielding Hotels from Digital Security Threats
February 21, 2019 • Rachel Zisek
Category: Legal Updates
Security has become a paramount concern for hotels across the globe. While the hospitality industry has historically prioritized efforts to safeguard properties from physical threats of violence, digital security threats are on a meteoric rise. Most notably, hackers have devised ways to infiltrate hotels’ online security measures. A common tactic used by hackers involves the use of ransomware, a type of malicious software that prevents system access unless a sum of money is paid to the culprits. A very infamous example took place in the Austrian Alps at the four-star Seehotel. Between December 2016 and January 2017, Seehotel’s electronic door locks and other internal systems were held for ransom on four separate occasions. Guests were unable to use their hotel door keys until Seehotel’s managing director paid the digital attackers.
New California Ruling Changes the Rules of On-Call Shifts
February 13, 2019 • Jacqueline A. Godoy
Category: Legal Updates
Due to a recent California Court of Appeal ruling, employers must now pay employees “reporting time pay” when employees are required to call their worksite two (2) hours prior to a scheduled on-call shift and must report to work for that shift if the employer requests. In Ward v. Tilly’s, Inc., the Court made clear that this ruling applies prospectively and not retroactively.
NLRB Rolls Back Limitations on Independent Contractor Classification
February 6, 2019 • Adam L. Parry, Christina Tantoy
Category: Legal Updates
The National Labor Relations Board’s recent ruling in SuperShuttle DFW, Inc. returns to a longstanding standard in evaluating proper independent contractor classification. Although its scope is limited, the recent ruling eases restrictions on proper independent contractor classification for purposes of unionization rights under the NLRA, specifically where the workers’ role involves “entrepreneurial opportunity.”
Should Employees Be Paid for Their Time Spent in Company-Provided Vehicles?
November 29, 2018 • Christina Tantoy
Category: Legal Updates
As employer-provided rideshares and shuttles grow in popularity, employers often ask whether their employees should be paid for their time spent on company-provided transportation. A California appellate court recently affirmed a long-standing rule that, so long as the employer-provided shuttle is optional, the time spent on a company-provided vehicle does not count as “hours worked” and is not compensable.
Protect Victims, Protect Your Business: Compliance with SB 970
November 1, 2018 • Benjamin J. Herold
Category: Legal Updates
Senate Bill 970, signed into law by Governor Jerry Brown on September 27, 2018, will require employers in the hotel and/or motel industry to educate their employees on human trafficking awareness.
San Francisco Ban-The-Box Ordinance Amendments
October 12, 2018 • Christina Tantoy
Category: Legal Updates
San Francisco implemented critical amendments to its “Ban-the-Box”, or “Fair Chance Ordinance” (“FCO”). These amendments went into effect on October 1, 2018.
New Bills Affecting California Businesses – Expansions on Harassment and Discrimination Protections
October 12, 2018 • Benjamin J. Herold
Category: Legal Updates
On September 30, 2018, Governor Jerry Brown signed a number of bills that will have a major impact on businesses operating in California.
The 5-Star Promise: A Renewed Commitment to Hotel Security in the Hospitality Industry
October 4, 2018 • Rachel Zisek
Category: Legal Updates
In the wake of the recent Las Vegas shooting and the rise of the #MeToo movement, concerns about safety in the hospitality space are at an all-time high. The American Hotel & Lodging Association (“AHLA”) recently re-emphasized its dedication to these issues through its announcement of the 5-Star Promise in September 2018. Most notably, major hotel brands including Hilton, Hyatt, IHG, Marriott, and Wyndham, have publicly shown their support for the Promise and its goals.
LEGAL UPDATE: New York State and New York City Mandate Sexual Harassment Policies and Trainings
October 1, 2018 • Christina Tantoy, Emani Pollard
Category: Legal Updates
In April 2018, Governor Cuomo of New York signed a set of laws aimed at combating sexual harassment in the workplace. New York employers must (1) provide all employees with written policies describing employee protections against sexual harassment and (2) conduct annual sexual harassment prevention trainings with all employees.
Last week the Ninth Circuit filed its en banc opinion by the Ninth Circuit in Marsh v. J. Alexander’s LLC, No. 15-15791, 2018 WL 4440364 (9th Cir. Sept. 18, 2018). In this case, the full Ninth Circuit overturned previous panel and district court decisions and upheld the U.S. Department of Labor’s “20%” rule for tipped employees.
New Notices for Employment Background Checks
September 14, 2018 • Adam L. Parry
Category: Legal Updates
On Tuesday, the Bureau of Consumer Financial Protection published a new version of the “Summary of Your Rights Under the Fair Credit Reporting Act”. This version must be provided to job applicants when conducting employment background checks pursuant to the Fair Credit Reporting Act (“FCRA”). The revised Summary of Rights alerts applicants to their right to obtain a free national “security freeze”, which prohibits credit reporting agencies from releasing a person’s credit report without their consent.
What's In a Name? Navigating Gratuities, Tips and Service Charges
August 31, 2018 • Ashley S. Nunneker, Rachel Zisek
Category: Legal Updates
Hospitality guests have historically used gratuity to acknowledge their service staff’s excellent work. Employees have come to expect and rely on gratuities, as they now often form the majority of their incomes. Restaurants also sometimes charge guests mandatory fees instead of, or in addition to, gratuity. Yet employers often mislabel, mishandle and commingle gratuities and service charges, which can have serious legal implications. Understanding the differences between a gratuity and a service charge is critical. Below, we demystify these payments and explain how to limit your exposure through best practices.
The Social Security Administration (“SSA”) has announced, effective January 2019, it will begin enforcing penalties against employers who file Form W-2s with inaccurate employee information.
On June 6, 2018, the NLRB’s new General Counsel, Peter B. Robb, issued guidance regarding the Board’s current policies on Employee Handbooks, expanding on the Board’s recent decision in The Boeing Company, 365 NLRB No. 154 (Dec. 14, 2017), and taking a more employer-friendly approach.
New York City Amends Paid Sick Leave to Include Protections for "Safe Leave"
August 14, 2018 • Rachel Zisek
Category: Legal Updates
Significant amendments to New York City’s Earned Safe and Sick Time Act (“ESTA”) went into effect on May 5, 2018. ESTA generally provides employees with the ability to use accrued paid time off for personal purposes. This paid time off (or, “paid sick leave”) can be used by employees to care for themselves or to care for family members.
Stop Sexual Harassment in NYC Act and Its Implications
August 14, 2018 • Jordan A. Fishman
Category: Legal Updates
New York City recently signed the “Stop Sexual Harassment in NYC Act” into law. The Act amends the New York City Human Rights Law (“NYCHRL”) and the New York City Charter, providing several noteworthy changes aimed at preventing sexual harassment in the workplace.
Oregon Becomes First State to Require Predictive Scheduling
August 14, 2018 • Ashley S. Nunneker
Category: Legal Updates
Oregon’s “Fair Work Week Act” requires covered employers to provide employees with advanced notice of their work schedules. The new law applies to employers in the large retail, food service and hospitality industries with more than 500 employees worldwide and at least one or more hourly employees working in the State of Oregon.
Recent amendments to Seattle’s Paid Sick and Safe Time (PSST) ordinance make it even more comprehensive and inclusive. The law provides employees of eligible employers with paid sick time as well as “safe” time to deal with situations such as domestic abuse or sexual assault, or closure of work or school for any health-related reason.
Proposition 65 Requires New Warning Signs for California Hotels
August 14, 2018 • Christina Tantoy
Category: Legal Updates
Starting August 30, 2018, California hotels must display additional signs warning guests of chemicals that can cause cancer, birth defects, or other reproductive harm.
California Hotels Must Now Display Human Trafficking Notice
August 14, 2018 • Christina Tantoy
Category: Legal Updates
California hotels must display a human trafficking notice in a visible location near the public entrance or in another conspicuous location in clear view of the public and employees where similar notices are customarily posted.
California Transgender Rights Regulations, Posters and Training
August 14, 2018
Category: Legal Updates
To further create workplaces free of sexual harassment and discrimination, California’s Fair Employment and Housing Act (“FEHA”) has expanded regulations to require employers to honor an individual’s gender identity, provide gender-neutral facilities, and display posters informing employees of transgender rights. The most notable amendments to the regulations go into effect July 1, 2017.
California Employment Development Department Poster & Pamphlet Updates
August 8, 2018 • Benjamin J. Herold
Category: Legal Updates
The California Employment Development Department (EDD) recently updated its Notice to Employees poster (DE 1857A) and its pamphlet, For Your Benefit: California’s Program for the Unemployed (DE 2320).
Impending Changes to the Illinois Human Rights Act
August 7, 2018 • Shirley A. Gauvin
Category: Legal Updates
The #MeToo movement has prompted many state and local governments to expand protections prohibiting discrimination. Two months ago, the Illinois General Assembly passed a series of amendments to the Illinois Human Rights Act, which forbids discrimination in connection with any protected class. If signed into law, the amendments could significantly impact employers.
Historically, employers have not been on the hook for paying employees for time that was de minimis, or in other words, hard to capture in a time system and administratively difficult to record. However, that just changed with the decision in the California Supreme Court case, Troester v. Starbucks, Corp.
Adrian Camacho v. Target Corporation and General Releases
June 25, 2018 • Benjamin J. Herold
Category: Legal Updates
If you are considering settling your employee’s workers’ compensation claim and hoping to avoid further litigation, be aware of the Adrian Camacho v. Target Corporation decision by California’s Fourth District Court of Appeal.
Just last month, the General Data Protection Regulation (“GDPR”) came into existence. GDPR is the legal framework establishing the guidelines for collection and processing of personal data of individuals in the European Union (“EU”) and the rights of the individuals with regard to such data. The GDPR requires businesses to be much more explicit about the information they maintain on people and to provide them with more control over that information. While European businesses may have been planning for the GDPR for some time, many U.S. companies are unprepared with no plans in place to comply. However, the long arm of the GDPR might apply to them.
CAL-OSHA Approves Hotel Housekeeping Safety Rules
June 6, 2018 • Christina Tantoy
Category: Legal Updates
California’s Division of Occupational Safety and Health (“Cal-OSHA”) has approved new regulations to prevent workplace injuries to those working in the housekeeping and hospitality industry.
Cities of Los Angeles and Santa Monica Announced Annual Increased Minimum Wage for Hotel Workers
May 24, 2018 • Christina Tantoy
Category: Legal Updates
The City of Los Angeles announced its Citywide Hotel Worker Minimum Wage increase, which applies to hotels in the City of LA with 150 or more rooms.
Class Action Waivers Are Lawful and Should Be Enforced
May 21, 2018 • Jordan A. Fishman
Category: Legal Updates
Today, the Supreme Court issued a 5-4 decision holding that employers are not violating the National Labor Relations Act by requiring employees to sign class action waivers in arbitration agreements as a condition of their employment. Rejecting the NLRB’s position that class waivers violate a workers’ right to engage in concerted action, the majority held that mandatory arbitration agreements, which bar employees from joining together in a class-action lawsuit to settle disputes over wages and working conditions, must be enforced.
California Supreme Court Adopts "ABC Test"—Sets Stricter Standards for Classifying Independent Contractors
May 4, 2018
Category: Legal Updates
Determining whether a worker is properly classified as an employee or independent contractor can be difficult. California recently made this determination less challenging by providing a more rigid test.
Trump DOL Seeks to Rescind Obama-Era Tip Pool Regulation
April 30, 2018 • Christina Tantoy
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.
Have You Checked Your Website's Accessibility
April 30, 2018 • Christina Tantoy
Category: Legal Updates
The newest trend in Americans with Disabilities Act (“ADA”) lawsuits target businesses’ websites. Litigants have increasingly sued or threatened to sue under Title III, alleging that the website is not sufficiently accessible to the disabled (i.e., the website lacks assistive technology for individuals who are blind or hearing-impaired).
NLRB Relaxes Enforcement of Workplace Rules Aimed To Restrict Employee Discussion over Grievances and Unionization
April 30, 2018 • Christina Tantoy
Category: Legal Updates
The National Labor Relations Act (NLRA) protects the employee right to engage in “concerted activities for the purpose of . . . mutual aid or protection.” This includes not only the right to support a union, but also simply the right of employees to converse among themselves on issues affecting their employment. Consequently, any workplace rule explicitly infringing on this right, as well as any rule applied so as to cause such infringement, can be held unlawful. For example, if employees regularly get together before or after work, during which gripes and grievances (or unions) can be discussed, a workplace rule restricting these gatherings will generally be held unlawful.
The #METOO movement took social media by storm in October 2017 as a means of illustrating the prevalence of sexual assault, harassment, and misconduct, particularly in the workplace. As the conversation around the #METOO movement swirls, employers have begun to assess how the movement affects their policies. Employers should stick to a simple three-part strategy: (1) promulgate a clear policy; (2) thoroughly investigate complaints; and (3) always respond accordingly and swiftly.
Back-of-House Staff Employed in States Without Tip Credits May Now Participate in Tip Pools
April 30, 2018 • Shirley A. Gauvin
Category: Legal Updates
On Aril 6, 2018, the U.S. Department of Labor announced amendments to the Fair Labor Standards Act (“FLSA”) § 3(m).
Ninth Circuit Approves Calculation of Minimum Wage by Weekly Average
April 30, 2018
Category: Legal Updates
In November 2017, the Ninth Circuit (covering California, Washington, Oregon, Nevada, Hawaii, Alaska, Idaho, Arizona, Montana) decided that the Fair Labor Standard Act’s (“FLSA”) hourly minimum wage requirement applies to weekly per-hour averages rather than actual per-hour pay. This means that the appropriate way to determine minimum wage compliance under the FLSA during any workweek is by calculating the pay earned during the entire workweek, rather than the pay earned in each individual hour of the workweek.
Second Circuit Holds that Anti-Gay Discrimination Falls Within the Purview of Title VII
April 30, 2018 • Shirley A. Gauvin
Category: Legal Updates
The 2nd Circuit, covering Connecticut, New York, and Vermont, has revived a sex bias claim brought on behalf of Donald Zarda, a deceased skydiving instructor who was allegedly fired for telling a client he was gay. As an instructor at Altitude Express, Zarda sometimes mentioned his orientation in order to help female clients feel more comfortable when jumping, as they would be tied physically close to him during jumps. Zarda was fired after a boyfriend of one female client complained to Zarda’s boss that Zarda had inappropriately touched his girlfriend and mentioned he was gay. Zarda denied anything inappropriate and alleged that his dismissal was entirely because he said he was gay.
On-Call Workers May Pursue Reporting Time Pay When They “Report” to Work via Phone.
April 30, 2018 • Adam L. Parry
Category: Legal Updates
On-call employees of fast food chain Yoshinoya claim they are owed reporting time pay when they call in for a shift but are not put to work. A L.A. Superior Court judge recently ruled that the plaintiffs may pursue their claims. This putative class of kitchen and cashier “on-call” employees call two hours before their scheduled shift to find out whether they are needed to work. If they fail to call in or do not show up for work when needed, they may face discipline. Plaintiffs claim that they are entitled to reporting time pay when they call in but are not put to work, even though they are not required to physically report to work.
California’s New Parent Leave Act (S.B. 63), which requires small business employers (20-49 employees) to provide employees with 12 weeks of unpaid, job-protected parental bonding leave went into effect on January 1, 2018.
California’s “Immigrant Worker Protection Act” (“AB 450”) went into effect on January 1, 2018. This Act prohibits California employers from allowing an ICE agent to search a worksite by an ICE agent without proper, legal documentation. Employers may not provide ICE agents access to employee records without a subpoena or warrant, with the exception of Form I-9’s and other documents for which the employer receives a Notice of Inspection.
Criminal Conviction for Violation of Santa Monica Minimum Wage Ordinances
April 30, 2018 • Anne-Marie Mizel
Category: Legal Updates
In July 2016, Santa Monica enacted two minimum wage ordinances, one specific to hotel workers (the “Hotel Workers Living Wage Ordinance”), and the other to any employees of an employer in Santa Monica (“Minimum Wage Ordinance”).
California/OSHA Approves New Hotel Housekeeping Injury Standard
April 30, 2018 • Anne-Marie Mizel
Category: Legal Updates
On January 18, 2018, California’s Department of Industrial Relations Occupational Safety & Health Standards Board, approved a proposed regulation requiring hotel employers to maintain “an effective, written, musculoskeletal injury prevention program (MIPP) that addresses hazards specific to housekeeping.”
Federal Judge Holds Against Rescission of DACA
April 27, 2018 • Christina Tantoy
Category: Legal Updates
The Trump administration has been ordered to accept new applications for Deferred Action for Childhood Arrivals (“DACA”) benefits.
California Employee Handbooks 2018 Update
February 16, 2018 • Christina Tantoy
Category: Legal Updates
Stokes Wagner recommends that you review and update your employee handbooks annually. This article contains a list of policies and procedures for you to consider adding in your respective employee handbooks.
New Primary Beneficiary Test and U.S. Department of Labor’s Revised Guidance Provides Employers with More Flexibility for Internship Programs
January 17, 2018
Category: Legal Updates
Prior to 2018, the United States Department of Labor (“DOL”) had applied a rigid six-part test to determine whether interns must be treated as employees or unpaid interns. However, on January 5, 2018, the DOL announced that, in an effort to eliminate confusion and align itself with recent case law, it would adopt the “Primary Beneficiary” test to determine whether interns are employees under the Fair Labor Standards Act (“FLSA”).
New York Paid Family Leave Effective January 1, 2018
November 21, 2017 • Jordan A. Fishman
Category: Legal Updates
Starting January 1, 2018, nearly all private employees in New York State will be eligible for Paid Family Leave so the employee can (1) bond with a newly born, adopted or fostered child; (2) care for a family member with a serious health condition; or (3) assist loved ones when a family member is deployed abroad on active military duty. Paid Family Leave will phase in over four years, starting at 8 weeks in 2018 and increasing to 12 weeks by 2021.
Chicago Passes New Law to Protect Hotel Employees Against Sexual Assault
November 2, 2017 • Christina Tantoy
Category: Legal Updates
To better protect hotel workers against sexual harassment and assault, Chicago passed the “Hands Off Pants On” Ordinance. The Ordinance requires Hotels in the City of Chicago to adopt (1) a “panic button” system and (2) anti-sexual harassment policy.
Salary History Ban Takes Effect October 31, 2017 in New York City
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.
New CA Employment Bills: Paid Parental Leave, Considering Prior Salary on Applications, Ban The Box Legislation, Harassment Prevention Training, & Immigrant Worker Protection
October 18, 2017 • Christina Tantoy, Diana Lerma
Category: Legal Updates
Governor Brown, Jr., recently signed five employment bills into law that affect all California employers. The following laws are effective starting January 1, 2018.
California Increases Employer Penalties for Cal-OSHA Violations
October 5, 2017 • Christina Tantoy
Category: Legal Updates
California’s Division of Occupational Safety and Health (“Cal-OSHA”) recently increased its penalties in response to Federal OSHA’s increased penalty hikes last year.
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 Department of Labor (DOL) has announced an intent to rescind the notorious 2011 Federal Tip-Pooling Rule, which currently prevents service-industry employers from allowing front-of-house servers to share tips with back-of-house employees (i.e., cooks and dishwashers). Under the 2011 regulation, tip-pools must only include front of house staff. Given the prevalence of tip-pooling in the service industry, the 2011 rule has been the subject of numerous legal challenges, including two petitions that are currently pending before the United States Supreme Court.
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.
Supreme Court Sets Date for Arbitration Class Waiver Cases
September 1, 2017
Category: Legal Updates
In a recent newsletter, we reported that the United States Supreme Court would decide the hotly contested issue of whether class waivers are valid in arbitration agreements sometime this year.
The Court recently announced that it would hear oral argument on the issue on October 2, 2017. Stokes Wagner will keep you informed as things progress with this hot issue.
For more legal updates, check out our update for September 2017!
Plaintiff Wins 7th Circuit Wrongful Termination Case
September 1, 2017 • Peter B. Maretz
Category: Legal Updates
In Stragapede v. City of Evanston, Illinois, the Seventh Circuit upheld the nearly $580,000 jury verdict in favor of the former City employee. Stragapede, a 14-year veteran of the City’s Department of Water Services, suffered a traumatic brain injury at home in 2009.
As we wrote in our June update, the Obama administration raised the minimum salary requirement for major “white collar” exemptions from $455/week to $913/week. In July 2017, the Department of Labor (“DOL”) filed its long-awaited reply brief with the 5th Circuit regarding the new minimum requirements. The DOL did not seek to reinstate the Obama’s minimum salary level. The DOL did, however, ask the Court to find that the DOL has authority to set a salary test.
For the first time ever, the California Labor Commissioner fined a general contractor nearly $250,000 for wage and hour violations committed by its subcontractor, who had been hired for a hotel construction project in Southern California. This decision is significant for businesses that use subcontractors.
Employers May Recover Costs in Employment Cases
September 1, 2017 • Shirley A. Gauvin
Category: Legal Updates
Ever wonder if you can recover litigation costs in employment cases? On August 15, 2017, in Sviridov v. City of San Diego, the court made it clearer for employers.
Two years ago, in Williams v. Chino Valley Independent Fire Dist., the Supreme Court explained that prevailing employers in employment cases can generally only recover costs if the employee’s action was objectively without foundation – an extraordinarily high standard. However, Williams was not asked to consider and did not answer the question of whether costs may properly be awarded in a FEHA action pursuant to a Section 998 offer. That issue was before the court in Sviridov.
Arbitration Agreements May Also Waive Informal DLSE Hearings
September 1, 2017 • Christina Tantoy
Category: Legal Updates
Employees who sue for unpaid wages can either file (1) a civil lawsuit or (2) a wage claim with the Division of Labor Standards and Enforcement (“DLSE”). An employee who files a wage claim with the DLSE may participate in a settlement conference with his/her employer. If the case does not settle, the DLSE will set the case to an administrative hearing, known as a “Berman Hearing”. Berman Hearings are mini, informal trials with a Labor Commissioner. Berman Hearings, compared to civil lawsuits, are designed to provide a speedy, informal, and affordable method for employees and employers to resolve wage claims.
More Protections to Breastfeeding Mothers
September 1, 2017 • Anne-Marie Mizel
Category: Legal Updates
Starting January 1, 2018, San Francisco requires employers to ensure that any space offered for lactation also includes a place to sit, a surface on which to place a breast pump and/or other personal items, access to electricity, and a nearby refrigerator in which the employee can store expressed milk. An employee’s lactation break time may be unpaid if it is not taken within or during an already-specified paid break. The Ordinance strictly prohibits retaliation against anyone who requests lactation accommodation or files a complaint with San Francisco’s Office of Labor Standards Enforcement (“OLSE”).
San Francisco Bans Inquiry Into Job Applicants’ Salary History
September 1, 2017 • Adam L. Parry
Category: Legal Updates
Effective July 19, 2017, San Francisco became the first city in California to ban employers from asking job applicants about their salary history. This is the latest in a nationwide movement to promote gender pay equality. As cited in the San Francisco Ordinance, census data shows that women in San Francisco are paid 84 cents for every dollar a man makes, and women of color are paid even less. The ban seeks to stop the “problematic practice” of relying on past salaries to set new employees’ pay rates, which perpetuates the historic gender pay gap.
Effective 3/13/2017, San Jose employers must offer additional hours of work to current part-time employees before agreeing to hire additional, outside workers. These current part-time employees must in “good faith and reasonable judgment” have the necessary skills and experience to perform the work. Employers are not required, however, to offer hours to part-time employees if doing so would require overtime pay.
Boston Union Members Acquitted in Case Involving “Top Chef” Hosts
September 1, 2017 • Christina Tantoy
Category: Legal Updates
Local 25 Teamsters (Union) were recently acquitted of charges of conspiracy to extort and attempted extortion. In June 2014, the Teamsters allegedly slashed tires, used sexist and racist slurs, and threatened to “bash” celebrity host Padma Lakshmi’s “pretty little face in.”
Federal prosecutors accused the Union members of trying to shut down the filming if the show did not hire Teamsters to drive production vehicles. The prosecutors specifically had to prove that the Teamsters’ labor objectives, however egregious their actions, were illegitimate.
Additional Protections to Pregnant and Nursing Women
September 1, 2017 • Jacqueline A. Godoy
Category: Legal Updates
Massachusetts recently passed the Pregnant Workers Fairness Act, which protects women from discrimination based on pregnancy, childbirth, and expressing milk. Effective April 1, 2018, it is unlawful for an employer to deny reasonable accommodations related to pregnancy, childbirth, or related conditions upon request unless the employer can demonstrate that the accommodation would impose an undue hardship on the employer.
Employers in Massachusetts may not terminate employees who use medical marijuana in accordance with a prescription according to the Massachusetts Supreme Judicial Court’s recent ruling in Barbuto v. Advantage Sales and Marketing, LLC. Barbuto, a former Advantage employee, disclosed her medical marijuana usage at the time of her hire. Ms. Barbuto worked for only one day before she was terminated for failing the company’s mandatory drug test. The company’s drug policies followed the federal drug schedule, not local Massachusetts law. The court found for Ms. Barbuto by stating that, in terminating her employment, the company illegally discriminated against her.
New York City – Clarifications on ‘Ban the Box’
September 1, 2017 • Jordan A. Fishman
Category: Legal Updates
On August 5, 2017, the New York City Commission on Human Rights published final regulations which expand on and clarify the already burdensome requirements of the Fair Chance Act (“FCA”). These newly released regulations will make background checks particularly difficult for national employers and/or employers with a consolidated hiring process in multiple states.
The City of New York enacted several bills affecting fast-food employers, effective November 26, 2017.
We are pleased to present the Legal Update for our latest Quarter!
EEO-1 Amendments on Pause, Working Families Flexibility Act May Convert Overtime to Comp Time, Update on Proposed Change to Federal Overtime Regulations, and more.
This quarter’s newsletter includes useful information about Federal and California law updates.
EEOC on Retaliation, Class Action Waivers and the NLRA, New Information for EEO-1 Filings, and more.