Stokes Wagner Law Firm
Stokes Wagner

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.

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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!

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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.

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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.

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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.

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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.

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We are pleased to present the Legal Update for our latest Quarter! Download the PDF version by clicking here.

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The City of New York enacted several bills affecting fast-food employers, effective November 26, 2017.

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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.

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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.

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