All posts by Lorraine Shenefield

Clarification for Washington Employers with Tipped Employees

The Washington Department of Labor and Industries (L&I) clarified existing policies on Tips, Gratuities, and Service Charges. Here are 5 points to review in your policies that apply to Tipped Employees:

#1.  All tips belong to the employee.

  • Existing policy: All tips must go to the tipped employee and employers cannot take a “tip credit” toward the employee’s minimum wage (tip pooling is permitted).
  • Clarification: The employer may have a policy prohibiting the employee from accepting tips or gratuities, but if a customer leaves a tip “in defiance of a policy” the employee must be permitted to keep the tip.

#2.  Exempt individuals may not be part of a tip pool.

  • Existing policy: Tip pooling can be mandatory however, per Federal and State guidelines, Managers and Supervisors may not be included in a tip pool.
  • Clarification: The interpretation of “Manager and Supervisor” now includes any individual that is “Exempt” under RCW 49.46.010(3)(c).
    • Note: Exempt employees can accept tips, but only for services that they “directly provide” to customers and they may not participate in a tip pool.

Continue reading Clarification for Washington Employers with Tipped Employees

New Tip Credit Rules – Give credit where credit is due

The Department of Labor’s (DOL) Wage and Hour Division recently published a Field Assistance Bulletin to notify employers that they have updated the Division’s Field Operations Handbook concerning a change to tipped employees in Dual Jobs.

Prior to November 8, 2018 the DOL Guidance stated that employers were prohibited from taking tip credit for work time if the employee spent more than 20% of that time performing non-tipped related duties during the workweek (referred to as the 80/20 Rule).

The DOL recognized that this was confusing for employers and they have rescinded the 20% rule so that now employers can apply tip credit to the time an employee performs tipped jobs even if that job includes some non-tipped tasks (such as washing a few dishes) during or immediately before or after performing tipped duties. Continue reading New Tip Credit Rules – Give credit where credit is due

NEW CASE: The Michigan Court of Appeals Reinforces Zero-Tolerance Workplace Rules

In a recent case ( Eplee v City of Lansing ), the Michigan Court of Appeals held that an employer could rescind a conditional offer of employment when the applicant fails a drug screen for Marijuana.

In this case, the plaintiff, Angela Eplee, was given a conditional offer of employment by the defendant, Lansing Board of Water and Light (BWL).

At the time of the offer, Eplee informed the employer that she qualified under the Michigan Medical Marihuana Act (MMMA) for a valid medical marijuana registry card.  Eplee underwent a preemployment drug test and tested positive for marijuana and BWL rescinded the conditional offer of employment.

Continue reading NEW CASE: The Michigan Court of Appeals Reinforces Zero-Tolerance Workplace Rules

NEW CASE: New Jersey Federal Court Tests A Drug Testing Policy

A New Jersey federal court held that an employer is not compelled to waive drug testing requirements (including an accommodation for Medical Marijuana use) under either the Medical Marijuana Act (“NJCUMMA”) or the New Jersey Law Against Discrimination (“NJLAD”).

In Cotto vs. Ardagh Glass Packing Inc.,  the plaintiff (Cotto) was a forklift operator injured on the job when the employer (Ardagh Glass Packing) required a post-accident drug test as a condition to return to work. The employee failed the drug screen due to several medically-prescribed medicines, including medical marijuana.

Ardagh Class Packing required the employee test negative for marijuana before returning to work and placed him on an indefinite suspension.

The court noted that marijuana is still prohibited federally and that New Jersey’s NJCUMMA states that “nothing in this act shall be construed to require . . . an employer to accommodate the medical use of marijuana in any workplace.” They also noted court decisions from California, Colorado, Michigan and New Mexico that did not protect employees from adverse employment actions involving medical marijuana use.

The federal court dismissed the plaintiff’s claim that the requirement for a negative marijuana drug test in order to return to work constituted disability discrimination in violation of the NJCUMMA and the NJLAD and the employer is not required to “reasonably accommodate” the use of medical marijuana.


Federal Tip Credit and Tip Pooling Basics

The Fair Labor Standards Act (FLSA) outlines federal tip credit and tip pooling provisions.

What is tip credit and tip pooling under Federal Law?

  • Under a valid tip credit policy, employers are able to pay tipped employees an hourly rate that is less than minimum wage – provided that the tipped employee’s hourly wage plus tips equals or exceeds the required minimum wage.
  • A tip pooling agreement requires tipped employees to deposit a portion of their customer tips into a common “tip pool” to be shared with other employees. A valid Tip Pooling arrangement must meet all the requirements of the FLSA provisions (and any state requirements) for tipped employees.

Continue reading Federal Tip Credit and Tip Pooling Basics

NEW LAW: Predictive Scheduling Coming to Philadelphia

Philadelphia Mayor Jim Kenney recently signed the Fair Workweek Employment Standards Ordinance into law. The new law, which goes into effect on January 1, 2020, will impact employee scheduling if the employer:

  • Is in the retail, hospitality, or food service industries;
  • Has 250 or more employees (including full and part-time); and
  • Has 30 or more locations worldwide in.

Employers must provide newly hired employees a “Good-faith” estimate of their work schedule which includes:

  • The average number of work hours the employee can expect to work each week over a typical 90-day period.
  • The expectation to work any on-call shifts,
  • Days and times the employee can typically expect to work and when they can expect to be off work.
  • A written work schedule through the end of the currently posted work period (provided before the first day of work).

Continue reading NEW LAW: Predictive Scheduling Coming to Philadelphia