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 CASE: New Risk for Oregon Employers Encouraging Alcohol at After Work Gatherings

The Oregon Supreme Court recently held that the “social host” exemption that protects servers and bartenders from claims against them does not protect employers from other possible negligent acts related to events where alcohol is present.

In the case of Schutz v. La Costita III, Inc., 364 Or. 536 (March 14, 2019), the plaintiff filed claims against the restaurant that served her drinks, the supervisor who encouraged her to drink, and against her employer who she claimed did not adequately train the supervisor on appropriate team building events.

The Plaintiff, Ashley Schultz, claims that her supervisor regularly pressured workers to attend after work events where alcohol was involved. Fearing that she would not advance in the company if she did not participate in one of these events, Schultz finally decided that she would attend after numerous requests. During the event, the supervisor encouraged more drinking and was critical of employees who did not drink enough. Ashley wanted to please her supervisor, but in doing so became intoxicated. When she left the restaurant to return home, she got into a car accident which caused her serious injuries. Continue reading NEW CASE: New Risk for Oregon Employers Encouraging Alcohol at After Work Gatherings

NEW LAW: Pregnancy Accommodation Now Required For Pittsburgh Employees And Partners

Pittsburgh employers should be aware that the City Council just passed a new ordinance expanding protections for pregnant employees. The ordinance will impact private employers with requirements similar to Federal Pregnancy Discrimination Act, Americans with Disabilities act and other related EEOC guidance.

In an unprecedented move, Pittsburgh’s ordinance is one of the first cities to extend protections for partners of pregnant women. Partner is defined broadly to mean a person of any gender with whom a pregnant woman has a relationship of mutual emotional and/or physical support (and does not require a marital or domestic relationship).

The new ordinance amends section 659.02 of Article V, Chapter 659 of the Pittsburgh City Code, providing further protections by making pregnancy its own protected class. Additionally, it extends the laws anti-discrimination provisions to partners of pregnant employees. Continue reading NEW LAW: Pregnancy Accommodation Now Required For Pittsburgh Employees And Partners

NEW LAW: US DOL Increases the Penalties for Violations of Several Laws

It’s that time of the year again …

The Federal Civil Penalties Inflation Adjustment Act of 1990 was amended and is required to annually adjust the civil monetary penalty levels due to inflation ideally no later than January 15 of each year. However due to funding issues the final 2019 ruling was delayed just a bit this year.

But don’t worry, the Department of Labor Federal Civil Penalties Inflation Adjustment Act Annual Adjustments for 2019 regarding the Fair Labor Standards Act (FLSA), Family and Medical Leave Act (FMLA) and for Occupation Safety and Health Association (OSHA) is now available.

FLSA
The DOL has established that employers who repeatedly or willfully violate federal minimum wage or overtime requirements under the FLSA will receive a maximum penalty of $2,014; an increase from $1,964. Continue reading NEW LAW: US DOL Increases the Penalties for Violations of Several Laws

The New Biometric Data Ruling You Need to Know About!

Authentication through biometrics—such as fingerprinting or iris scanning—is growing rapidly. In 2008, Illinois passed the Biometric Information Privacy Act (BIPA) and became the first state to regulate the collection and use of this kind of data.

Recently, the Illinois Supreme Court made it much easier for plaintiffs to show harm under BIPA. This means we’ll likely see a significant rise in the number of lawsuits alleging violations.

The Trouble with Biometrics

While convenient, there are several drawbacks to using this data to authenticate a user. Biometrics cannot be changed, like a password or government-issued identification number, if compromised. Consequently, lawmakers continue to regulate the collection, use, storage, and destruction of this sensitive data. Continue reading The New Biometric Data Ruling You Need to Know About!

NEW CASE: Failing to Provide Lactation Accommodations Cost One Employer 1.5 Million Dollars

As part of the passage of the Affordable Care Act, the Fair Labor Standards Act (FLSA) was amended in March of 2010 to require most employers to provide nonexempt employees nursing mothers a “reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk.”

Employers are also required to provide “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.”

As a result, nursing mothers have legal protections that allow them to express breast milk in the workplace.  Employers must comply or face potential consequences which may include liability under Title VII of the Civil Rights Act of 1964 as demonstrated by a recent jury verdict in Delaware. Continue reading NEW CASE: Failing to Provide Lactation Accommodations Cost One Employer 1.5 Million Dollars

NEW CASE: Ignoring Employees’ Sexual Harassment Complaints Costs One Employer $11 Million

In a recent case (Meadowcroft and Brown v. Silverton Partners, Inc.), two winery employees, Megan Meadowcroft and Amanda Brown, alleged they had been sexually harassed by their supervisor, General Manager Pinero throughout their employment.

Specifically, Brown had complained that Pinero has flirted flirted with her constantly (which was unwelcome and made her feel uncomfortable).  She further claimed that Pinero had touched her in an inappropriate manner.

Meadowcroft had complained that Pinero made sexually explicit gestures and sexual comments to her.  She further complained that Pinero had physically touched her by putting his hands on her waist and under her buttocks while she was working.  Finally, Meadowcroft complained that Pinero had told her that she could be a manger if she had sex with him. Continue reading NEW CASE: Ignoring Employees’ Sexual Harassment Complaints Costs One Employer $11 Million

NEW LAW: Cincinnati Passes Salary History Ban

On March 13, 2019, the  city of Cincinnati passed  Ordinance No 0083-2019 that prohibits employers from asking about or relying on the prior salary history of job applicants.

Under the new ordinance, which goes into effect on March 13, 2020 and applies to employers who have 15+ employees in Cincinnati, employers are prohibited from:

  • Inquiring about the salary history of an applicant for employment
  • Screening job applicants based on their current or prior wages, benefits, other compensation, or salary histories, including requiring that an applicant’s prior wages, benefits, other compensation or salary history satisfy minimum or maximum criteria; or
  • Relying on the salary history of an applicant in deciding whether to offer employment to an applicant, or in determining the salary, benefits, or other compensation for such applicant during the hiring process, including the negotiation of an employment contract; or
  • Refusing to hire or otherwise disfavoring, injuring, or retaliating against an applicant for not disclosing his or her salary history to an employer.

Continue reading NEW LAW: Cincinnati Passes Salary History Ban

Contingent Commissions Agreements Are Not Required to Be Paid Upon Termination Under the Massachusetts Wage Act.

Lukas, a former employee of Unidine Corporation, believed that sales commission was still owed to her after she voluntary resigned with company.

As the Director of Business Development, Lukas was responsible for identifying, cultivating and enlisting new customers.  Some of these job duties allowed her to earn an annual commission. The wording in the contract between Lukas and her employers, stated as long as she is actively employed and in good standing with the company, she shall be eligible to receive a commission or bonus providing he/she is not been terminated.

Following her departure, Lukas sought payment of approximately $197,000.00 in sales commissions for the new service contracts that she claimed she produced while employed at Unidine. Continue reading Contingent Commissions Agreements Are Not Required to Be Paid Upon Termination Under the Massachusetts Wage Act.

What is Your Company’s Definition of Outside Sales?

As you know, the Fair Labor Standards Act (FLSA) requires most employees to be paid minimum wage and overtime, except for those that are exempt outside sales employees.

According to the FLSA, to qualify for the outside sales employee exemption, all of the following tests must be met:

  • The employee’s primary duty must be making sales (as defined in the FLSA), or obtaining orders or contracts for services or for the use of facilities for which a consideration will be paid by the client or customer; and
  • The employee must be customarily and regularly engaged away from the employer’s place or places of

Sounds simple enough, so why do so many employers miss the mark?

Many employers do not fully understand the outside sales exemption, which can prove to be extremely costly. Continue reading What is Your Company’s Definition of Outside Sales?