Hospitality Labor and Employment Law Blog

Hospitality Labor and Employment Law Blog

NLRB Rules That Employees Can Use Company Email for Union Organizing – Affects All Employers

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Our colleague Steven Swirsky at Epstein Becker Green wrote an advisory on an NLRB ruling that affects all employers: “NLRB Holds That Employees Have the Right to Use Company Email Systems for Union Organizing – Union and Non-Union Employers Are All Affected.” Following is an excerpt:

In its Purple Communications, Inc., decision, the National Labor Relations Board (“NLRB” or “Board”) has ruled that “employee use of email for statutorily protected communications on nonworking time must presumptively be permitted” by employers that provide employees with access to email at work.  While the majority in Purple Communications characterized the decision as “carefully limited,” in reality, it appears to be a major game changer.  This decision applies to all employers, not only those that have union-represented employees or that are in the midst of union organizing campaigns.

Under this decision, which applies to both unionized and non-union workplaces alike, if an employer allows employees to use its email system at work, use of the email system “for statutorily protected communications on nonworking time must presumptively be permitted . . . .” In other words, if an employee has access to email at work and is ever allowed to use it to send or receive nonwork emails, the employee is permitted to use his or her work email to communicate with coworkers about union-related issues.

Read the full advisory here.

Epstein Becker Green’s Free Wage-Hour App Has Added More Checklists for Employers

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Wage Hour Guide ChecklistsAs readers of this blog know, EBG’s free wage-hour app is now available for download on Apple, Android, and Blackberry devices. The app puts federal wage-hour laws and those of many statesat users’ fingertips.

Now, the app also includes 7 checklists that employers should find helpful.

Each of the following checklists can be accessed through the “Downloads” icon on the app, then downloaded in seconds:

  • Applying the Administrative Exemption
  • Applying the Computer Employee Exemption
  • Applying the Executive Exemption
  • Applying the Highly Compensated Employee Exemption
  • Applying the Learned Professional Exemption
  • Common FLSA Exemption Pitfalls to Avoid
  • Wage and Hour Division Investigation

We hope you will find these checklists helpful as you try to navigate the sea of complex wage hour laws with which employers must comply.

Illinois Employers Will Soon Be Able To Legally Pay Their Employees by Payroll Cards, But Beware Of The Fine Print

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By Jeffrey H. Ruzal

In August, Illinois Governor Pat Quinn signed into law HB 5622, amending the Illinois Wage Payment and Collection Act (IWPCA), which now recognizes for the first time payment of wages by payroll card. The law goes into effect on January 1, 2015. While the law provides a new option for Illinois employers, they must be careful to comply with the conditions under which payroll cards may be used.

Under the current Illinois law, employers are required to pay employees via check or direct deposit. The current law is silent as to whether payroll cards, which operate like debit cards, can be used to pay wages. Some businesses prefer using payroll cards because, by simply loading the card electronically, they can save the costs involved in preparing physical checks. Employees, however, have been adverse to payroll cards because of fees that have been deducted from their wages. The Illinois Attorney General’s Office found that these fees were both excessive and unfair.

Under the new law, payroll cards will be a recognized method of wage payments, but only if the following criteria are met:

• The employee must voluntarily agree to the use of a payroll card as the method the employee chooses to receive his or her wages and/or final compensation. It is not voluntary if the employee is given to understand that it is a condition for hire or his or her present working conditions or continuance of his or her employment would be adversely affected by non-acceptance. An employer cannot mandate the use of a payroll card.

• If an employee voluntarily chooses to accept the use of a payroll card for the payment of wages and/or final compensation, the employer must disclose in writing to the employee all fees, penalties, and costs associated with the use of the payroll card. The employee must be able to deposit and/or obtain the full monetary value on the payroll card without discount.

• If the employee chooses the payroll card as a method of payment, the employer is required to provide an itemized statement of all hours worked, rate of pay, and all lawful deductions made from the wages and/or final compensation for each pay period.

• An employee can revoke his or her authorization of the payroll card as a method of payment at any time, and the employer is obligated to provide to the employee another alternative method for the payment of wages and/or final compensation.

• An employer is not permitted to offer employees only the choice between two voluntary methods of payment. Because payment by either payroll card or direct deposit must be voluntary, an employer offering either or both of these payment methods must also provide an additional choice of payment by cash or check, in accordance with the IWPCA.

Despite the clear financial and practical benefits of using payroll cards for wages, employers must strictly comply with the specific requirements under the law which takes effect on January 1, 2015. As a new law, it is likely that the Illinois Department of Labor and Office of Attorney General will be watching closely.

Jeffrey H. Ruzal Quoted in “Battles Over Hospitality Wages May Turn on Technicalities” – Law360

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Jeffrey H. Ruzal, Senior Counsel in the Labor and Employment practice, in Epstein Becker Green’s New York office, was quoted by Law360 in “Battles Over Hospitality Wages May Turn on Technicalities.” (Read the full version – subscription required.)

Following is an excerpt:

Law360, New York (October 08, 2014, 3:08 PM ET) – Sideswiped by a pair of minimum wage hikes in New York City and Los Angeles, hotel and restaurant groups are gearing up for legal fights on both coasts. But the groups face uphill battles and any successes will hinge on challenging technicalities in the city processes that approved the hikes . . .

Ruzal added that the New York City living wage order, like Los Angeles’ wage hike, is essentially a test initiative that is expected to precede larger campaigns to raise the minimum wages in these cities on a broader scale.

“This is the tip of the iceberg. It’s very smart legislation, it’s very smart politicking, in my view,” Ruzal said.

Also likely to bolster city officials in any upcoming legal battle is that New York and California’s initiatives are just the latest in a growing string of cities and states that are taking steps to raise wages in particular areas, according to Ruzal.

“I think these small, targeted increases are done by design and not just in New York with the idea of future citywide legislation,” Ruzal said.

Epstein Becker Green’s Wage and Hour App Is Now Available for iOS, Android, and BlackBerry

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Wage & Hour Guide App for Employersby Michael Kun

We’re very pleased to announce that a brand-new version of our free, first-of-its-kind app, the Wage & Hour Guide for Employers, is now available for Apple, Android, and BlackBerry devices. The new app takes advantage of a software-as-a-service programming platform developed by Panvista Mobile.

Our newest version of the app is not only available to users of a variety of devices, but it offers simpler, faster, and more useful ways for employers to locate wage and hour information at the touch of a fingertip.  As new issues are constantly emerging in this area, we’re pleased to provide updated information and critical tools to help employers address wage and hour laws and regulations, such as recent minimum wage increases.

Key features of the updated app include:

  • The Android version is now available for the first time on the Google Play store – also it is also available for BlackBerry devices
  • Updated iPhone and iPad versions are now available on the App Store
  • New summaries of wage and hour laws and regulations are included, including recent minimum wage increases in California, Connecticut, Georgia, Illinois, Maryland, Massachusetts, New Jersey, New York, Texas, Virginia, and the District of Columbia
  • Direct feeds of EBG’s Wage & Hour Defense Blog
  • Easy sharing of content via email and social media
  • Access to EBG’s @ebglaw Twitter feed
  • Rich media library of publications from EBG’s Wage and Hour practice
  • Expanded directory of EBG’s Wage and Hour attorneys

Existing iOS users should visit the App Store to download the new iPhone and iPad versions; the previous edition of the app is retired.

Are Your Managers Still Exempt?

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By Aaron Olsen

Minimum wage continues to be a hot button issue.  For instance, in California, the state minimum wage increased from $8.00 to $9.00 per hour on July 1, 2014. The state minimum wage will further increase to $10 per hour on January 1, 2016.  However, this affects more than just hourly employees.  In California, for employees to be classified as exempt under the “executive” exemption, they must, among other things, be paid at least two times the state minimum wage for full-time employment in a fixed, predetermined salary.  Thus, as of July 1, 2014, the minimum weekly salary is $720 per week (37,440 per year).

With the change in the minimum wage law in California, now is a good time to double check whether any of your employees who are classified as exempt meet all of the requirements.  There has been a lot of attention recently on the “executive” exemption and how it is used in the hospitality industry.  Indeed, as we have reported in the past, President Obama has ordered the Labor Department to revise the regulations concerning who can be classified as an “exempt or professional” employee. 

For California employees who are classified as exempt under the “executive” exemption, it is important also to verify whether the employee:

  •  Manages the enterprise or a customarily recognized department or subdivision thereof;
  • Customarily and regularly directs the work of at least two or more other employees therein;
  • Has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring or firing and as to the advancement and promotion or any other change of status of other employees will be given particular weight;
  • Customarily and regularly exercises discretion and independent judgment; and
  • Spends more than 50% of his/her time engaged in exempt activities.

Watch for common pitfalls.  For instance, if you have a seasonal operation, does the manager “regularly direct the work of at least two or more people” during the off season?  If you divide up the responsibilities such that there are many managers, is each manager truly managing a “customarily recognized department or subdivision.”  Also, how much say do they have in hiring or firing other employees?  For instance, is that decision left to another department?  If you were challenged in a lawsuit, would you be able to show that the employee spends more than 50% of his/her time in exempt activities?

In light of the steep penalties for misclassifying employees, it is important to be sure that anyone classified as exempt meets the requirements.

 

New Laws Affecting California Employers: Anti-Harassment Protections for Unpaid Interns, Anti-Bullying Training for Managers, and Mandatory Paid Sick Leave

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California has created additional protections for unpaid interns and created additional requirements for sexual harassment prevention training.  In addition, California has mandated a new requirement for most employers to provide their employees with paid sick leave.  This new sick-leave requirement will go into effect next summer on July 1, 2015. For a more detailed description of these changes, click here to review the Act Now Advisory written by our colleagues Jennifer L. Nutter and Marisa Ratinoff.

 

Illinois Court Holds That Meal Credit Program Is Valid

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Our colleague Jeffrey H. Ruzal recently wrote an article entitled “Illinois Court Holds That Meal Credit Program Is Valid,” which appears in the September 2014 issue of Hospitality Law.

Following is an excerpt:

Providing an employee meal program may be a nice gesture, but requires companies that do so to maintain proper records in case their meal plans are challenged.  An Illinois appellate court recently affirmed a circuit court’s dismissal of plaintiff restaurant worker’s class action claim that defendant restaurant employer took improper deductions from plaintiff’s wages to fund a meal credit program. 

Read the full article here.

Reprinted with permission from Hospitality Law. Copyright 2014 by LRP Publications. Palm Beach Gardens, FL 33418. All rights reserved. For details on this or other related products, visit www.shoplrp.com/hospitality.html or call toll free 1-800-341-7874

7-Eleven Franchise Operators’ Overtime & Minimum Wage Lawsuit Given Green Light by NJ District Court

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On Epstein Becker Green’s Management Memo blog, Maxine Neuhauser reviews New Jersey U.S. District Court’s ruling in Naik v. 7-Eleven that four franchise owner-operators may pursue overtime and minimum wage claims against franchisor 7-Eleven under both the federal Fair Labor Standards Act (“FLSA”) and the New Jersey Wage and Hour Law (“NJWHL”).

Following is an excerpt from the blog post:

On July 29, 2014 the NLRB’s General Counsel announced a decision to treat McDonald’s, USA, LLC as a joint employer, along with its franchisees, of workers  43 McDonald’s franchised restaurants with regard to unfair labor practices charges filed by unions on behalf of the  workers and authorized charges against of both the franchisees and McDonalds. (See our July 30 blog post  and Aug. 14 blog post)

To access the full blog post, please click here.

As Marijuana Becomes Legal in More States, How Should Employers Handle Positive Drug Tests?

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By:  Jordan Schwartz

Due to the ever changing laws surrounding the legality of marijuana, many of our hospitality clients have recently asked us whether it is lawful to terminate an employee who has tested positive for marijuana.  The answer varies greatly depending on the state in which you are located.  

States continue to pass legislation legalizing marijuana use for specific purposes.  On July 5, 2014, New York became the twenty-first state along with the District of Columbia to legalize marijuana use for certain medical conditions—joining Alaska, Arizona, California, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, and Vermont.  Two other states, Colorado and Washington, have legalized recreational marijuana use for individuals who are 21 years old or older, and Alaska and Oregon currently have similar legislation pending.

Most state laws legalizing marijuana do not address the employment issues implicated by these statutes.   Courts in several of these states have held that the protection afforded under these statutes is limited to the decriminalization of marijuana.  Therefore, courts have generally upheld employers’ right to discipline employees, including terminating their employment, when the employees’ marijuana use violates drug-free workplace policies.  However, some states, such as Arizona, Delaware, and Connecticut, prohibit employers from terminating an individual’s employment or failing to hire an applicant solely based on a positive drug test result.  Consequently, employers in those states should proceed cautiously when deciding whether to discipline an employee or fail to hire an applicant based on marijuana use.

Employers taking action against employees who have tested positive for marijuana can also run into issues with other state statutes, such as those prohibiting employers from taking adverse actions for lawful off-duty activities.  For example, Colorado prohibits an employer from firing an employee for lawful off-duty conduct.  Thus, even if an employee tests positive for marijuana, he can claim he is protected from termination, so long as his use of the drug occurred during non-working hours.  At this point, it is not clear whether such an argument will be successful.  So far, there has only been one Colorado case, Coats v. Dish Network, L.L.C., addressing this novel legal question, and the Colorado Court of Appeals affirmed the employer’s right to fire an employee for off-duty medical marijuana use.  However, the Colorado Supreme Court granted review of the case recently, so Colorado employers should monitor this case closely.  Therefore, employers in Colorado and other states that prohibit discipline for lawful off-duty activities should be careful when penalizing their employees for off-duty marijuana use.

Hospitality employers also need to be aware of potential violations of the Americans with Disabilities Act (ADA) associated with medical marijuana.  Employers with facilities in states that allow medical marijuana use may need to provide a reasonable accommodation under the ADA for employees with a valid doctor’s authorization.  For instance, the New York statute permitting medical marijuana use automatically classifies every individual who is considered a Certified Patient as disabled.  Therefore, New York employers must engage in an interactive process with the employee to determine whether they need to provide the employee with a reasonable accommodation.  Employers in other states may have similar obligations.

Employers should continue to carefully monitor legislation in their states as the laws continue to evolve.  To ensure legal compliance, employers should rewrite their workplace policies to include marijuana in their drug testing policy and state the potential consequences of an employee’s marijuana use.  Finally, in deciding whether to terminate an employee for marijuana use, an employer may want to focus on the employee’s impairment on the job and approach the situation in the same way as it handles an employee’s impairment from alcohol or prescription drugs.

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