Stokes Wagner Law Firm
Stokes Wagner

On October 8, 2019, the U.S. Department of Labor (DOL) published a Notice of Proposed Rulemaking (NPRM) entitled “Tip Regulations Under the Fair Labor Standards Act.” The NPRM seeks to implement and refine the changes on tip pooling made by the Consolidated Appropriations Act (CAA) OF 2018. Most notably, it eliminates the 80/20 rule used to determine if an employer may incorporate an employee’s tips as part of their wages when the employee engages in both tipped and non-tipped duties. If adopted, the NPRM would greatly impact the hospitality industry by expanding the variety of employees who are permitted to participate in a tip pool.

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As the 2020 United States Census goes into full effect, the U.S. Census Bureau is sending letters to various hotels requesting their participation in the 2020 Census count (the “Census”). Every time, our clients have the same question: do we have to participate?

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Best Practices for Coronavirus

March 4, 2020  •  Diana Lerma

Category: Legal Updates

Coronavirus disease 2019 (COVID-19) is a respiratory disease caused by a new coronavirus, which has now been detected in almost 70 locations internationally, including in the United States.

COVID-19 has become a serious issue for all employers. Stokes Wagner has prepared the following best practices for you to consider in your business.

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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.

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On February 13, 2020, the California Supreme Court issued its opinion in Frlekin v. Apple, Inc., holding that the time employees spend waiting for their bags and other personal belongings to be screened at the end of a workday is compensable.

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On January 7, 2020, the U.S. Department of Labor published three new opinion letters that every employer should review. The first involves an employer’s nondiscretionary bonus payment of $3,000 given to employees who completed ten weeks of training with a promise to complete eight more weeks. In the second letter, the DOL determined that a per-project payment method satisfies the salary basis regulations for exemption under the FLSA. The third letter addressed compliance under the Family Medical Leave Act (“FMLA”).

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Beginning on March 15, 2020, employers will have to begin providing their Pittsburgh employees with paid sick leave pursuant to a Pittsburgh ordinance passed in 2015. Now that it has cleared judicial hurdles, the new law will require employers to provide their Pittsburgh employees one hour of sick leave for every 35 hours worked within the geographical limits of the City of Pittsburgh. Employers with fewer than 15 employees are not required to pay for the leave for one year after implementation of the law, but beginning on March 15, 2021, even small employers will be required to provide paid leave. The Guidelines for Administering Pittsburgh City Code Chapter 626 describe how to count employees for purposes of determining size of employer.

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Typically used in offices, hotels, hospitals, etc., to provide multiple phones lines within one building, multi-line telephone systems (“MLTS”) are the subject of two new federal laws: (1) Kari’s Law and (2) the Ray Baum Act.

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AB 51, the law that would prohibit California employers from requiring arbitration agreements as a condition of employment, remains on pause indefinitely. On January 31, 2020, after receiving supplemental briefing from both sides, the Eastern District of California issued an order granting preliminary injunction and indefinitely extending the injunction that prevents AB 51 from taking effect. This means that the State of California may not enforce AB 51 until the legal challenges to AB 51 are heard on the merits.

Employers should stay tuned for more updates as the Court will eventually determine whether the State of California should be permanently enjoined from enforcing AB 51. For now, the status quo remains and employers need not make any changes to arbitration agreements that are covered by the Federal Arbitration Act.

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On January 14, 2020, the House Committee on Education and Labor voted to advance the Pregnant Workers Fairness Act (H.R. 2694). The act aims to eliminate discrimination and promote women’s health and security by allowing pregnant women to continue working without jeopardizing their pregnancy. Although the Pregnancy Discrimination Act and the Americans with Disability Act provide some federal protections for pregnant workers, the Pregnant Workers Fairness Act will be the first federal law that explicitly guarantees all pregnant workers the right to reasonable accommodation.

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