Ashley S. Nunneker
Ashley S. Nunneker
Shareholder, Atlanta
Formerly: Hostess, Server, Bartender
  • B.A., Political Science - Georgia State University, magna cum laude;
  • J.D., Stetson University College of Law.

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.

2020 forced millions of employers to adapt their business models to allow employees to work from home and it looks as if this trend will continue indefinitely for many employers. With this in mind, employers should be aware of certain unintended consequences of having a workforce that telecommutes, namely the creation of additional repositories of electronic data that may be discoverable later in litigation. Given that this is the new normal, businesses should take this opportunity to review and update their data retention and litigation hold policies to ensure that they are meeting their obligations and setting themselves up to be successful should this data be needed in the future. Here are four simple steps you can take now to update your protocols.

1) Manage Your Policy. Simply having a policy is rarely adequate. Now is the time to ensure that your policy is properly managed. - Designate employees to be responsible for policy management and updates.

  • Understand your jurisdiction’s document retention requirements. For example, if your jurisdiction requires payroll records and personnel files to be retained for six years, make sure your policy reflects those mandates.
  • Ensure system migrations are reflected in your policy and data from legacy systems are archived and accessible.
  • Account for employees’ use of personal devices. It is important that employees understand that work-related data should not be stored on personal computers and should be saved to their appropriate online or network locations.

If you don’t have a data retention policy, now is the time to put one in place.

2) Know Your Data Inventory. Most of us know that computers, laptops, and cell phones of current employees hold discoverable information and are subject to document retention policies. But your obligations do not end there.

  • Before reissuing or transferring devices to new employees, have a plan for imaging or storing data found on former employees’ computers, laptops, and company-issued phones.
  • Understand who is hosting and managing your online content. This data can be in the form of email, hard copy, cellular, and cloud-based storage. It can be shared across platforms such as Office 365, Google apps, DropBox, Sharepoint, PeopleSoft, and Salesforce and even with external sources such as ADP, Paychex, LabCorp, and Iron Mountain.
  • Know how to access your data, especially if hosted by third parties. For data hosted by third parties, review your contracts and instructions for document retention. What made sense years ago when you first retained a vendor may not be enough now.
  • For data created, hosted, or managed by third parties, have a backup plan. If your vendor loses your data, what plan do you have in place to access that data?

3) Review Litigation Holds. Litigation hold notices inform employees of their legal obligation to preserve information that is relevant to litigation and provide instructions on how to preserve relevant data. Litigation hold notices are also an important tool in defending against allegations of spoliation of evidence.

It isn’t enough to issue a litigation hold to your IT department with instructions to cease the auto-purge of data or preservation of an email account. You should also send litigation hold notices to your executive team, human resources teams, and any managers or hourly employees who are likely to be witnesses in the litigation or to be required to search for discoverable information.

4) Document Your Process. Don’t assume that simply issuing litigation hold notices will be enough. Document the steps you take to comply with both your document retention policy and any issued litigation hold notices. A detailed log of the employees interviewed, systems searched, and steps taken to preserve potentially discoverable information will prove invaluable.

With preparation and foresight, employers can ensure that they are set up for success when the need arises. For any questions regarding document retention policies and litigation holds, don’t hesitate to contact a Stokes Wagner attorney.

For a printable PDF of this article, click here.

This document provides a general summary and is for informational/educational purposes only. It is not intended to be comprehensive, nor does it constitute legal advice. Please consult with counsel before taking or refraining from taking any action.

On August 5, 2020, Georgia Governor Kemp signed into law “Charlotte’s Law,” providing additional workplace protections to working mothers who need to express breast milk during working hours. Charlotte’s Law went into effect on August 5, 2020, and applies to all private employers.

Under the new law, nursing mothers are entitled to “reasonable” break time to express breast milk during work hours. Employers should be aware of the following:

  • Any break time taken under the new law must be paid at the employee’s regular rate of pay.
  • Employers must provide a private location other than a restroom where employees can express breast milk in privacy at the worksite.
  • The law applies only to employees who are working at the worksite. In other words, the law does not apply to employees who work from home.
  • A hardship exception may be available to employers with fewer than 50 employees where compliance with the law will cause the employer “undue hardship.” Undue hardship refers to “significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.”
  • Unlike federal law, Charlotte’s Law is not limited to the first year after the birth of the employee’s child.

The new law does not provide guidance on what constitutes a “reasonable” amount of time to express breast milk. Neither does it provide a cap on how long a nursing mother may be entitled to take lactation breaks after the birth of a child.

For a printable PDF of this article, click here.


The National Labor Relations Board‘s (“NLRB”) “joint employer” test has had tremendous implications for hospitality employers due to the industry’s reliance on third-party employees to supplement their workforces. The NLRB finally released the new test on February 25, 2020, and effectively replaced the previous test outlined in its 2015 Browning-Ferris Industries decision. The new rule narrows the test the NLRB will use to determine when businesses will be liable for the work of third-party employees under federal law. The new rule takes effect on April 27, 2020.

Under the new test, a company must exercise “substantial direct and immediate control” over at least one “essential term and condition” of a third-party’s employees to be considered a joint employer. The NLRB defines “substantial” as having “a regular or continuous consequential effect on an essential term or condition of employment of another employer’s employees. Such control is not ‘substantial’ if it is only exercised on a sporadic, isolated, or de minimis basis.” While indirect control may be evidence of joint-employer status, it alone cannot establish joint-employer status without evidence of substantial direct and immediate control.

A noteworthy feature of the new rule is that it provides an exhaustive list of the activities that the NLRB will consider an essential term or condition of employment: “an entity may be considered a joint employer of a separate employer’s employees only if the two share or codetermine the employees’ essential terms and conditions of employment, which are exclusively defined as wages, benefits, hours of work, hiring, discharge, discipline, supervision, and direction.” (Emphasis supplied.)

The NLRB explained that the purpose behind the exhaustive list of the terms and conditions of employment that may subject two entities to joint-employer status is to reduce litigation on this issue.

For more guidance on how to interpret the new rule, employers may consult the NLRB final rule, fact sheet, and press release provided by the NLRB. Contact your Stokes Wagner attorney for more information about how this new rule will impact your hospitality business!

For a printable PDF of this article, click here.

The U.S. Department of Labor released its highly anticipated final rule governing the new salary threshold for the “white collar” overtime exemptions. Effective January 1, 2020, the final rule raises the salary threshold for exempt white-collar workers to $35,568 per year.

The Obama administration’s attempt to raise the salary threshold to $47,476 in 2016 was enjoined by a federal judge. The appeal of that injunction remains pending before the Fifth Circuit.

The white-collar salary threshold was last raised by the George W. Bush administration in 2004 and the new increase to $35,568 appears to be a compromise with the Obama administration’s proposed increase. The DOL declined to include the Obama administration’s controversial proposal to require automatic increases to the salary threshold every three years.

The DOL also made changes to the “highly compensated” employee exemption. The new salary threshold for highly compensated workers will increase from $100,000 to $107,432.

Employers should take this opportunity to review the classification of employees who fall under the “white collar” exemptions to ensure that they: (1) meet the salary threshold; and (2) satisfy the substantive requirements necessary for the employee to be properly classified as exempt from overtime.

For a printable PDF of this article, click here.

Last year the Miami Beach City Commission passed a law requiring all hotels within the City of Miami Beach to provide certain employees with panic buttons by September 15, 2019. Modeled after Chicago’s 2018 safety-button ordinance, the new law applies not only to housekeepers or room attendants but also to minibar attendants and room service servers. Will your property be ready?

How to Comply with Ordinance No. 2018-4207: The law requires hotels to:

  • Provide ”safety button or notification devices to each hotel or hostel employee that is a room attendant, housekeeping attendant, minibar attendant, or room service server” at no cost to the employee.
  • Place a “plainly visible sign” inside of each guest room, written in a font size of no less than 14 points, that states the following: For the protection of our employees, this establishment provides safety buttons or notification devices to its room attendants, housekeeping attendants, minibar attendants, and room service servers, in compliance with Chapter 62, Article VI of the Code of the City of Miami Beach.
  • Submit an affidavit with the annual renewal of the hotel’s city business tax receipt, stating that the hotel is in compliance with the ordinance.

What Type of Safety Buttons Are Permitted? The ordinance is silent on whether the safety button requires only an audible alarm that does not identify the exact location of the employee, or whether the safety button must include GPS location tracking. Last week, the City of Miami Beach confirmed that GPS tracking is required and that a safety button that provides only an audible alarm does not comply with the ordinance. With only one month left to comply, this news may come as a surprise to hotels which have already purchased alarm-only safety buttons. Despite this recent update, some hotels on the beach have opted to move forward with audible-alarm buttons in light of the ordinance’s lack of specificity.

Who Will Enforce the Ordinance? The City’s department of code enforcement will enforce the ordinance but will only respond to complaints about a hotel’s noncompliance—it will not proactively inspect hotels. If a violation is found, the enforcement officer will issue a notice to the hotel that includes the following information:

  • Description of the violation,
  • Amount of the fine,
  • Instructions and due date for paying the fine, and
  • Explanation of the administrative appeal procedure.

A hotel found to be in violation of the ordinance will be subject to various penalties:

  • First offense: written warning
  • Second violation within preceding six months: civil fine of $500.00
  • Third violation within preceding six months: civil fine of $1,000.00;
  • Fourth or subsequent violation within preceding six months: civil fine of $2,000.00.

For a printable PDF of this article, click here.

Last month New York Governor Cuomo approved amendments to the state’s election laws that provide employees with up to three hours of paid leave on election days. In order to qualify, employees must be registered to vote and must give their employers two days’ notice of their intent to take election leave. Employers may require that leave be taken at the beginning or end of a work shift. Consistent with the previous version of the law, employers must remember to post a notice of the law at least ten days prior to each election. You can find the amended statute and the requisite notice here. Election paid leave is expected to be enforced in time for New York’s state primary next week on June 25, 2019.

Although election leave is not required under Federal law, state and local government requirements vary greatly, so be sure to stay up to date on your jurisdiction’s requirements. Now is also a great time to review your company’s election leave policy and ensure your management teams apply the policy consistently to all employees.

For a printable PDF of this article, click here.

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. Here are our top 5 prevention tips to avoid problems:

1) Show me the money! Perform a thorough written financial analysis that honestly compares the effective rate of your employed staff to the actual fees charged for outsourced labor. Make sure you will truly save significant green before you engage a vendor.

2) Perform a disparate impact analysis. Do a majority of the affected employees belong to a protected class? Have any of the affected employees complained about their working conditions? If so, proceed with caution! Seek legal advice to assess exposure.

3) Vet your vendors. Obtain bids from multiple vendors and interview them to ensure they are compliant with the law and adhere to the same best practices to which you hold yourself accountable. After all, sometimes you get what you pay for; the less expensive option may be less expensive because it improperly cuts corners.

4) Follow the Golden Rule. Employees are the backbone of our industry. Treat them with the respect they deserve. Give sufficient notice of any transition, offer other open positions to affected employees (when possible), provide severance to those you cannot retain, and urge your vendor to provide affected employees with a preferred opportunity for hire.

5) Watch out for joint-employer pitfalls. A vendor paying the employees who work under your roof does not automatically shield you from the vendor’s negligence, legal violations or other mistakes. Have a lawyer review all vendor contracts and provide you with preventive advice to reduce joint-employer exposure.

For a printable PDF of this article, click here.

This week, published an article by our own John Hunt and Ashley Nunneker, covering the nuanced differences between different types of compensation for hotel and restaurant servers. Check it out on their website! And if this thorough review doesn’t quite clarify everything you’re wondering about gratuities and service charges, contact Stokes Wagner with any questions you might have!

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.

Gratuities are Voluntary. Simply put, a gratuity is a voluntary amount paid by a guest in recognition of services performed. The amount of a gratuity is left to a customer’s discretion and is optional. Because a gratuity is voluntary, the term “automatic gratuity” is a misnomer. Although the terms “tip” and “gratuity” have been used interchangeably, we prefer “gratuity,” as it is industry standard.

Properly classifying a payment as a gratuity is essential, as certain states (including Arizona, California, Florida, Georgia, Massachusetts, New York, and Washington) do not subject gratuities to sales tax. It is also important to correctly identify which employees are eligible to receive gratuities, as litigation surrounding who can participate in a “tip pool” has become increasingly prevalent.

We have identified the following key traits of a gratuity or tip:

  • Customer determines the amount;
  • Not subject to sales or income tax;
  • Not included in calculation of employees’ overtime rate of pay;
  • Employer responsible for withholding taxes only from those gratuities it administers through payroll (i.e. credit card tips and tip share); and
  • Not considered “sales” and not reported on the employer’s gross revenues.

Best practices to limit exposure: - Present the bill to the guest with the gratuity area left blank, so the guest may voluntarily write in the amount. Take this opportunity to also inform guests that gratuities are optional. - You may provide “suggested gratuity” calculations, provided that the guest ultimately decides the amount. - Be sure to use terms consistently on all payroll records to dispel any uncertainty surrounding the payment. For example, if you administer credit card gratuities or tip share through payroll, use the term “gratuity” on employees’ paystubs if that is the term used on guest bills.

Service Charges are Mandatory. A service charge is a compulsory amount imposed by the venue, usually included as a percentage of the total bill. Unlike gratuities, guests are not given discretion to determine the amount or recipient. To further complicate matters, certain venues refer to service charges as “auto-gratuities” on bills. Remember, if the guest lacks discretion in the amount and recipient of the payment, it cannot be treated as a gratuity. Common examples of service charges in the hospitality industry include large-party charges at restaurants, bottle service charges at restaurants and night clubs, room service charges, and luggage assistance charges at hotels.

Key characteristics of a service charge include:

  • Venue determines the amount;
  • Recorded in gross receipts and subject to income tax;
  • Included in calculating overtime rates of pay if distributed to employees; and
  • Subject to employer and withholding taxes if distributed to employees.

Best practices for handling service charges:

  • Some states and localities require employers to distribute 100% of service charges to customer-facing staff (for example, California and New York). Other jurisdictions allow the venue to decide whether to retain all or a portion of a service charge or to distribute some or all to employees (Georgia and Florida, for example). We recommend distributing service charges to service staff, even if you are located in a jurisdiction that allows the venue to keep a portion.
  • If you distribute a portion of a service charge to employees, ensure they are paid within the same pay period they are earned.
  • If you do decide to provide guests an option to tip on top of a service charge, provide a blank line on the bill for the guest to write in an “optional gratuity” rather than “additional” gratuity. The word “additional” incorrectly suggests that the service charge is also a gratuity.
  • State and local regulations vary on the requirements for communicating service charges to guests on menus and receipts. We recommend plain language and 12-point font to ensure compliance across state lines.
  • Never merge a mandatory service charge with a gratuity on a bill into one amount. Each payment should be clearly and separately identified on the bill.

States also differ regarding other fixed charges like delivery fees. Some states consider a delivery charge to be a gratuity if a reasonable person would believe the charge would rightfully belong to an employee, while others firmly label these amounts as service charges.

Bottom line: consult with counsel to ensure that your service charge and gratuity practices are compliant with the laws where you conduct business.

For a PDF version of this article, click here.

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.

For new hires, covered employers must provide new employees with a written “good faith estimate” of the employee’s typical work schedule including the expected median number of hours per month and whether employees can be expected to work on-call shifts.

For all employees, employers must provide employees with notice of their work schedules at least 7 days before the period covered by the schedule begins. The 7-day notice period increases to 14 days beginning July 1, 2020.

If an employer adds an additional shift to an employee’s written work schedule, the employee may decline the new shift. If an employer subtracts hours from an employee’s scheduled shifts, the employer must pay the employee one-half of the employee’s regular hourly rate for each scheduled hour that the employee does not work due to the change.

What Does This Mean for You?

If you are a covered employer, you should take immediate steps to train your managers and HR teams on the law’s requirements and update your employee handbooks, policies, and training materials. Finally, there are exceptions to the penalty requirements, so call Stokes Wagner for guidance on navigating and complying with the Fair Work Week Act.

For a printable PDF of this article, click here - and be sure to check out more updates in our Stokes Wagner Quarterly Legal Update!

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.

Salary History Ban Effective October 31, 2017 in NYC

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!