Hospitality Labor and Employment Law Blog

Hospitality Labor and Employment Law Blog

Key Issues Facing Places of Public Accommodation at the 25th Anniversary of the ADA

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Our colleague Joshua A. Stein authored Epstein Becker Green’s recent issue of its Take 5 newsletter.   This Take 5 highlights five recent developments and future trends under Title III that places of public accommodation should keep their eyes on in 2015.

  1. Website Accessibility
  2. Accessible Point-of-Sale Devices and Other Touchscreen Technology
  3. Movie Theater Captioning & Audio (Narrative) Description
  4. The Availability of Sign Language Interpreters at Health Care Facilities
  5. “Drive By” Design/Construction Lawsuits

 Read the full newsletter here.

 

January 2015 Immigration Alert

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Robert S. Groban, Jr. and the Immigration Law Group of Epstein Becker Green recently issued an alert that will be of interest to employers. Following are the main topic headings:

Read the full alert here.

Legislation Introduced to Change Full-Time Employee Definition under the Affordable Care Act

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Our colleague August Emil Huelle at Epstein Becker Green has an Employee Benefits Insight Blog post that will be of interest to many of our readers: “Legislation Introduced to Change Full-Time Employee Definition under the Affordable Care Act.”

Following is an excerpt:

On January 7, 2015, U.S. Senators Susan Collins (R-ME) and Joe Donnelly (D–IN) along with Lisa Murkowski (R-AK) and Joe Manchin (D-WV) introduced the Forty Hours is Full Time Act, legislation that would amend the definition of a “full-time employee” under the Affordable Care Act to an employee who works an average of 40 hours per week.  In the coming days, the House is expected to vote on its own version of this legislation, the Save American Workers Act.

The teeth of the Affordable Care Act have the ability to sink excise taxes on employers who do not offer affordable healthcare coverage to full-time employees, which the Affordable Care Act defines as employees who work an average of 30 hours per week.  In announcing the introduction of the legislation, Senator Collins argued that the current definition “creates a perverse incentive for businesses to cut their employees’ hours so they are no longer considered full time.”  The implication being that the Forty Hours is Full Time Act will increase employee wages because the employers who reportedly reduced employee hours below 30 per week in an effort to avoid costs associated with providing healthcare coverage to employees (or the tax for not providing coverage to employees) are the same employers who will raise employee hours above 30 per week if they are not faced with such costs.  

Read the full blog post here.

NLRB’s New Election Rules Challenged As Unconstitutional

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On January 5, 2015, less than one month after the National Labor Relations Board (NLRB) voted to adopt a Final Rule to amend its rules and procedures for representation elections, a lawsuit has been filed in the US District Court for the District of Columbia, asserting that the Board exceeded its authority under the National Labor Relations Act (Act) when it amended its rules for votes on union representation and that the new rule in unconstitutional and violates the First and Fifth Amendments of the US Constitution.

The suit was filed by the Chamber of Commerce of the United States, Coalition for a Democratic Workplace, National Association of Manufacturers, the National Retail Federation and the Society for Human Resources Management.  It seeks an order vacating the Final Rule, declaring the Final Rule to be contrary to the Act and in excess of the Board’s statutory jurisdiction and authority and to violate the First and Fifth Amendments.

The claims raised in the suit are essentially the same as those which were raised by in an action filed in the same court in 2012, in response to the NLRB’s December 2011 adoption of a very similar set of changes to its representation election procedures.  That action also challenged the Board’s action based on what it found to be the Board’s lack of a quorum at the time it adopted those rule changes in 2011. Because the Court found that the Board lacked a quorum at that time, it found it unnecessary to address the substantive arguments about the changes in the election rules that are the essence of the new lawsuit.

While the Complaint does not indicate that the plaintiffs are seeking an order enjoining the Board from implementing the new election procedures under the Final Rule while the case is litigated, the plaintiffs are likely to request such an order as the Final Rule’s effective date of April 15th nears.  In the earlier challenge to the Board’s 2011 rulemaking, the Court granted an injunction in April 2012 enjoining the Board from putting the new rules and procedures into effect, while it considered the merits of the challenge.

While Republican members of Congress have with increasing frequency have indicated their desire to reign in the Board in a variety of areas where they have seen it as exceeding its mandate or moving in directions that they do not agree with, it is almost certain that President Obama would veto such legislation and it is not likely that the sufficient support would be present to override a veto. Thus as the New York Times observed  earlier this week, those who oppose administrative actions such as this are turning increasingly to the courts in hopes of relief.

We will continue to monitor and report on developments in this closely watched case.

2015 Has an Extra Pay Period: Dilemma for Those Paying Exempt Employees Bi-Weekly

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Our colleagues Michael Kun and Jeffrey Ruzal at Epstein Becker Green have a Wage & Hour Defense Blog post that will be of interest to many of our readers: “Unusual Wage Payment Issue in 2015 for Many Employers: 27 Bi-Weekly Pay Periods, Not 26.”

Following is an excerpt:

There is an unusual wage issue for 2015 that will affect many employers that pay exempt employees on a bi-weekly basis (rather than weekly, semi-monthly or monthly).

It is an issue that may have both financial and legal repercussions.

And it is an issue we suspect many employers had not noticed or considered.

With 52 weeks in a year, there normally are 26 bi-weekly pay periods in a calendar year.  In 2015, however, there will be 27 for many employers.

This oddity occurs every 11 years.  In short, it happens because 26 bi-weekly paychecks only cover 364 days in a year, not 365 (or 366 in Leap Years).  Those extra one or two “unaccounted for” days add up to create an additional pay period every 11 years.

The extra pay period is more than just an oddity.  It raises a dilemma for those employers that pay exempt employees on a bi-weekly basis – either pay employees more than intended, or face a possible wage payment claim.

Read the full post here.

Tip-Related Wage and Hour Issues for the Hospitality Industry in 2015

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Our colleague Jeffrey Ruzal at Epstein Becker Green recently wrote a Take 5 newsletter focused on the hospitality industry: “Tip-Related Claims Will Continue to Be Served Up as the Lawsuit du Jour Against the Hospitality Industry in 2015.”

Following is an excerpt:

The hospitality industry is particularly fertile ground for a wide variety of wage and hour issues, which continue to plague management through steadily increasing federal and state department of labor investigations and enforcement actions and the seemingly endless onslaught of private wage and hour lawsuits filed by an overzealous plaintiffs’ bar. Tip credit claims are government regulators’ and plaintiffs’ favorite, and there are no signs that such claims will abate in the coming year.

Employers may take a credit against the prevailing minimum hourly wage earned by employees performing tip-earning duties, such as servers, bartenders, bussers, hosts, housekeeping personnel, and bell staff. Before taking a tip credit, however, employers must comply with very specific federal and state tip credit laws, rules, and regulations, which form the basis of the various tip credit lawsuits commonly filed against employers in the hospitality industry.

Because of the prevalence of tip credit lawsuits in the hospitality industry, this edition of Take 5 will address five of the most common tip-related wage and hour issues that are often the focus of litigation. They are as follows:

  1. Properly Providing Tip Credit Notice
  2. Correctly Applying the Tip Credit Allowance
  3. Properly Computing Tipped Employees’ Overtime Pay
  4. Ensuring That Tipped Employees Actually Perform Tipped Work
  5. Complying with Tip Pooling or Sharing Requirements

Read the full Take 5 here.

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.

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