Hospitality Labor and Employment Law Blog

Hospitality Labor and Employment Law Blog

Category Archives: FLSA

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Texas Federal Court Enjoins New FLSA Overtime Rules: Employer Impact

Our colleague Michael S. Kun, national Chairperson of the Wage and Hour practice group at Epstein Becker Green, has a post on the Wage & Hour Defense Blog that will be of interest to many of our readers in the hospitality industry: “Stop! Texas Federal Court Enjoins New FLSA Overtime Rules.”

Following is an excerpt:

The injunction could leave employers in a state of limbo for weeks, months and perhaps longer as injunctions often do not resolve cases and, instead, lead to lengthy appeals. Here, though, the injunction could spell the quick death to the new rules should … Continue Reading

Proposed Increases Under New York State’s Overtime Laws: Not Blocked by Federal Overtime Rule Change Injunction

Our colleague Jeffrey H. Ruzal, Senior Counsel at Epstein Becker Green, has a post on the Wage & Hour Defense Blog that will be of interest to many of our readers in the hospitality industry: “Decision Enjoining Federal Overtime Rule Changes Will Not Affect Proposed Increases Under New York State’s Overtime Laws.”

Following is an excerpt:

As we recently reported on our Wage & Hour Defense Blog, on November 22, 2016, a federal judge in the Eastern District of Texas issued a nationwide preliminary injunction enjoining the U.S. Department of Labor from implementing its new overtime … Continue Reading

Employers: DOL Final White Collar Exemption Rule Takes Effect on December 1, 2016

Our colleagues Jeffrey Ruzal and Michael Kun at Epstein Becker Green have a post on the Wage & Hour Defense Blog that will be of interest to many of our readers in the hospitality industry: “DOL Final White Collar Exemption Rule to Take Effect on December 1, 2016.”

Following is an excerpt:

Nearly a year after the Department of Labor (“DOL”) issued its Notice of Proposed Rulemaking to address an increase in the minimum salary for white collar exemptions, the DOL has announced its final rule, to take effect on December 1, 2016. …

According to the DOL’s Continue Reading

Fourth Circuit Decision Highlights Need for Employers to Assess Whether Training Time Should Be Compensated

CasinoWhether time spent in training is compensable time under the Fair Labor Standards Act (“FLSA”) is an issue that the courts have addressed in a variety of contexts. A new Fourth Circuit decision – Harbourt v. PPE Casino Resorts Maryland, LLC – addressed that issue in the context of pre-hire training provided to some casino workers in Maryland and concluded that the casino workers alleged sufficient facts to proceed with their claims that they should have been paid for pre-hire training.

After Maryland legalized full-fledged casino gambling in November 2012, the state had a supply and demand problem. Casinos had … Continue Reading

Southern District of New York’s Rejection of FLSA Settlement Highlights Need to Settle on Terms That Will Pass Judicial Muster

Brian W. Steinbach

Brian W. Steinbach

In rejecting the terms of a collective action settlement in Yun v. Ippudo USA Holdings, No. 14-CV-8706 (S.D.N.Y. March 24, 2016) the United States District Court for the Southern District of New York has confirmed the significance of last year’s Second Circuit Court of Appeals decision in Cheeks v. Freeport Pancake House, Inc., 796 F.3d 199 (2015)Cheeks held that parties cannot enter into an enforceable private settlement of Fair Labor Standards Act (“FLSA”) claims without the approval of either the district court or the Department of Labor. Yun shows what this means in practice … Continue Reading

Ninth Circuit Approves DOL Rule Prohibiting “Tip Pooling” for Kitchen Employees Even Where No “Tip Credit” Is Taken

The Fair Labor Standards Act (“FLSA”) permits employers to use “tip credits” to satisfy minimum wage obligations to tipped employees.  Some employers use those “tip credits” to satisfy the minimum wage obligations; some do not.  (And in some states, like California, they cannot do so without running afoul of state minimum wage laws.)

Many hospitality employers use “tip pools” to divide customer tips among staff.  Those “tip pools” normally provide for tips to be divided among “front of the house” employees who are involved in serving customers – servers, bartenders, etc. Some employers have extended the “tip pools” to include … Continue Reading

Five Recent Developments Employers in New York State or City Should Know

Employers of all industries should be aware of the following five recent developments under New York State and New York City employment law.Evan J. Spelfogel

  1. Increased Minimum Wage

Effective December 31, 2015, three separate minimum wage increases took effect across New York State: (i) the nonexempt employee minimum wage increased from $8.75 per hour to $9.00 per hour; (ii) the minimum salary for executive and administrative exemptions increased from $656.25 per week to $675.00 per week; and (iii) the minimum pre tip wage for tipped employees in the hospitality industry increased to $7.50 per hour, with a corresponding reduction in the state’s … Continue Reading

Coping With the New Definition of Exempt Employees: The Proposed New Salary Test May Not Benefit Currently Salaried Employees

Under the Federal Fair Labor Standards Act (and state wage hour laws) certain hourly paid employees must be paid time and one-half their regular rate of pay for all hours worked over 40 in a regular work week.

But certain employees (for example many general managers and lead managers) are exempt from this requirement if they satisfy three qualifications imposed by federal regulations:

  1. The employee must be paid a predetermined and fixed salary that is not subject to reduction because of variations in the quality or quantity of work performed;
  2. the amount of salary paid must be at least
Continue Reading

Proposed DOL Rule To Make More White Collar Employees Eligible For Overtime Pay

I recently wrote a Wage and Hour Defense blog post with my colleague Michael S. Kun and it will be of interest to all hospitality employers – “Proposed DOL Rule To Make More White Collar Employees Eligible For Overtime Pay.”Clock

Following is an excerpt:

More than a year after its efforts were first announced, the U.S. Department of Labor (“DOL”) has finally announced its proposed new rule pertaining to overtime. And that rule, if implemented, will result in a great many “white collar” employees previously treated as exempt becoming eligible for overtime pay for work performed beyond 40 … Continue Reading

Massachusetts Issues Proposed Sick Leave Regulations

As we reported, last November, voters in Massachusetts approved a law granting Massachusetts employees the right to sick leave, starting on July 1, 2015.  The law provides paid sick leave for employers with 11 or more employees and unpaid sick leave for employees with 10 or fewer employees. While the law set forth the basics, many of the details, which have differentiated the various sick leave laws across the country, were not previously specified (e.g., minimum increments of use, frontloading, documentation).  The Massachusetts Attorney General’s Office (“AGO”) has set forth proposed regulations to guide employers in implementing the upcoming … Continue Reading

FMLA Same-Sex Spouse Final Rule Enjoined in Some States

One day before the U.S. Department of Labor’s Family & Medical Leave Act (“FMLA”) same-sex spouse final rule took effect on March 27, 2015, the U.S. District Court for the Northern District of Texas ordered a preliminary injunction in Texas v. U.S., staying the application of the Final Rule for the states of Texas, Arkansas, Louisiana, and Nebraska.  This ruling directly impacts employers within the hospitality industry who are located or have employees living in these four states.

Background

In United States v. Windsor, the U.S. Supreme Court struck down Section 3 of the Defense of Marriage Act … Continue Reading

Strategic Use of Arbitration Agreements in FLSA Context Gets Boost

In a case that has strategic implications for employers’ use of arbitration agreements in response to collective claims brought under the Fair Labor Standards Act (“FLSA”), the Eighth Circuit has held that former servers at an Arkansas pizzeria chain lack standing to challenge the pizzeria’s enforcement of an arbitration agreement that bars current employees from joining the FLSA collective action.  Conners v. Gusano’s Chi. Style Pizzeria, No. 14-1829 (8th Cir. Mar. 9, 2015).

In Conners, the plaintiff filed a proposed collective action lawsuit on behalf of herself and other restaurant servers, alleging Gusano’s maintained an illegal tip pool … Continue Reading

D.C. Circuit Reinstates FMLA Claim Even Though Plaintiff’s Leave Request Was Granted

Client service is paramount in the hospitality industry, and frequent or extended leaves of absences by employees may make providing the same level of consistent service difficult.  But employers should take heed of the recent decision by the District of Columbia Circuit Court of Appeals when considering employee requests for leave under the Family and Medical Leave Act.  In Gordon v United States Capitol Police, No. 13-5072 (D.C. Cir. Feb. 20, 2015), the D.C. Circuit held that an employer who discourages an employee from taking FMLA leave may be liable for an interference claim, even if that discouragement was … Continue Reading

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

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
Continue Reading

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

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 … Continue Reading

Are Your Managers Still Exempt?

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 … Continue Reading

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

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.

 … Continue Reading

Illinois Court Holds That Meal Credit Program Is Valid

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.… Continue Reading

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

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 … Continue Reading

Offset as Defense to FLSA Suit May Mitigate Unpaid Wage Claims

Our colleague Jeffrey H. Ruzal recently wrote an article entitled “Offset as Defense to FLSA Suit May Mitigate Unpaid Wage Claims,” which appears in the June 2014 issue of Hospitality Law.

Following is an excerpt:

A federal district court in Michigan recently preserved for trial the question of whether a defendant employer may mitigate its back wage liability by offsetting paid break time, which would effectively extinguish plaintiff employees’ claims under the Fair Labor Standards Act.

In Hayes, et al., v. Greektown Casino, LLC, et al., No. 12-1552 (E.D. Mich. 03/31/14), a group of
current and former security … Continue Reading

Kara Maciel Quoted in “Six Tips on Not Getting Tripped Up by FLSA’s Tipped Employee Rules”

Our colleague Kara Maciel, the editor of Hospitality Labor and Employment Law Blog, was quoted in an article titled "Six Tips on Not Getting Tripped Up by FLSA’s Tipped Employee Rules" that was recently published in Thompson’s HR Compliance Expert.

Following is an excerpt:

Employers need to make sure they are following both federal Fair Labor Standards Act requirements and state laws regarding tipped employees, said Kara Maciel of the firm Epstein Becker Green during a recent seminar focused on tipped employees. …

However, every state has its own set of rules regarding tipped workers and … Continue Reading

Hot Topic for Summer: How to Handle Unpaid Internships

By: Kara M. Maciel

My colleagues have a new post on the Retail Labor and Employment Law blog that will help many of our readers at this time of year: “Summer’s Coming! How to Handle Unpaid Internships,” by Jeffrey M. Landes, Susan Gross Sholinsky, and Nancy L. Gunzenhauser.

Following is an excerpt:

A hot topic for every summer – but particularly this summer – is the status of unpaid interns. You are probably aware that several wage and hour lawsuits have been brought regarding the employment status of unpaid interns, particularly in the entertainment and … Continue Reading

Filing a Wage And Hour Class Action is Protected by The National Labor Relations Act

By Steven M. Swirsky

An NLRB Administrative Law Judge issued a Decision on April 29th in which he found that when a waiter in a restaurant in New York City, acting alone, instituted a class action lawsuit claiming violation of state or federal wage and hour laws, he was  engaging in concerted activity on behalf of himself and co-workers, even if none of those co-workers are aware of the filing.  While the decision does not mention whether the waiter was represented by a union, it seems pretty clear that there was no union in this case.

 

Thus, the Judge … Continue Reading

Playing with Employees’ Hours Could Get You in Hot Water under the ACA and FLSA

By:  Kara Maciel, Adam Solander and Lindsay Smith

As the Employer Mandate compliance deadline looms for employers under the Affordable Care Act (“ACA”) and employers are closely monitoring employee hours, it is critical that employers take appropriate and lawful steps to record all hours worked by an employee.  If employers try to play games and manipulate how time records are maintained, they could find themselves in hot water under both the ACA and the Fair Labor Standards Act (“FLSA”). 

In what appears to be one of the first lawsuits challenging how hours are recorded under the ACA, an employee … Continue Reading

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