In the new issue of Take 5, our colleagues examine five employment, labor, and workforce management issues that will continue to be reviewed and remain top of mind for employers under the Trump administration:
When: Tuesday, October 18, 2016 8:00 a.m. – 4:00 p.m.
Where: New York Hilton Midtown, 1335 Avenue of the Americas, New York, NY 10019
Epstein Becker Green’s Annual Workforce Management Briefing will focus on the latest developments in labor and employment law, including:
- Latest Developments from the NLRB
- Attracting and Retaining a Diverse Workforce
- ADA Website Compliance
- Trade Secrets and Non-Competes
- Managing and Administering Leave Policies
- New Overtime Rules
- Workplace Violence and Active-Shooter Situations
- Recordings in the Workplace
- Instilling Corporate Ethics
This year, we welcome Marc Freedman and Jim Plunkett from the U.S. Chamber of Commerce. Marc and Jim will … Continue Reading
With the financial crisis and recession behind us, mergers and acquisitions have picked up dramatically over the past several years. In 2015, more than 25,000 M&A deals were announced in the United States, valued at trillions of dollars, primarily involving companies in the hospitality, health care, pharmaceuticals, energy, and technology industries. This year and next, most financial experts foresee an increasing number of these transactions taking place.
In an M&A transaction, the buyer must determine whether it will acquire only the assets of the target company or acquire both the assets and liabilities of that company. Based on that determination, … Continue Reading
A featured story on Employment Law This Week is the Ninth Circuit’s backing of the Department of Labor’s rule on “tip pooling.”
In 2011, the Department of Labor issued a rule that barred restaurant and hospitality employers from including kitchen staff in “tip pools,” which are sometimes used to meet an employer’s minimum wage requirements. The DOL ruled that kitchen staff should be excluded from pools even if the tips are not required to meet minimum wage obligations. Two district court decisions held that the department does not have the authority to regulate this practice outside of the minimum wage … Continue Reading
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 … Continue Reading
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 … Continue Reading
By Michael Kun
Several years ago, employees in California began filing class action lawsuits against their employers alleging violations of the “suitable seating” provision buried in the state’s Wage Orders. The unique provision requires some employers to provide “suitable seating” to some employees when the “nature of their work” would “reasonably permit it.”
The use of multiple sets of quotation marks in the previous sentence should give readers a good idea just how little guidance employers have about the obscure law.
The California Supreme Court is now poised to explain what that obscure law means for those employers who … Continue Reading
The OCAHO has recently issued two Form I-9 enforcement decisions involving hospitality and construction industry employers that should be of interest to all our clients.
In United States v. Symmetric Solutions, Inc. d/b/a Minerva Indian Cuisine, 10 OCAHO no. 1209 (OCAHO February 6, 2014), an OCAHO Administrative Law Judge ("ALJ") upheld a $77,000 fine imposed by Immigration Customs Enforcement ("ICE") against a restaurant in Alpharetta, Georgia ("Restaurant"), for Form I-9 violations. ICE claimed that the Restaurant failed to prepare/present Forms I-9 for more than 80 employees, failed to ensure that several … Continue Reading
By Kara Maciel
Our national hospitality practice frequently advises restaurant owners and operators on whether it is legal for employers to pass credit card swipe fees onto employees or even to guests, and the short answer is, yes, in most states. But whether an employer wants to actually pass along this charge and risk alienating their staff or their customers is another question.
With respect to consumers, in the majority of states, passing credit card swipe fees along in a customer surcharge became lawful in 2013. Only ten states prohibit it: California, Colorado, Connecticut, Florida, Kansas, Maine, Massachusetts, Oklahoma, … Continue Reading
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
Epstein Becker Green is pleased to be participating in the 2014 National HR In Hospitality Conference & Expo at the Aria Hotel in Las Vegas on April 28-30, 2014. EBG is sending two of its hospitality industry experts to represent the Firm, Kara M. Maciel and Jeffrey H. Ruzal.
Kara, a Member of the Firm in its Washington, DC office, is Chair of the Hospitality Employment and Labor Law Outreach Group. Kara’s practice is concentrated on issues related to the hospitality industry where she has represented national hotel chains, hospitality management groups, restaurants and spas. Kara also counsels employers on compliance … Continue Reading
When hoteliers are considering purchasing, selling or remodeling hotels, one of the most overlooked issues during the due diligence and planning phases relates to the Worker Adjustment and Retraining Notification Act.
This statute requires covered employers to provide 60 days’ notice to employees, union representatives, state agencies and localities before carrying out plant closings or mass layoffs. Congress intentionally devised WARN to provide affected employees adequate time to prepare for employment loss, seek and obtain alternative employment, and/or arrange for skill training or retraining to compete successfully in the job market.
Accordingly, hotel buyers, sellers, owners … Continue Reading
Most unionized hospitality employers have collective bargaining agreements which require contributions to multiemployer pension funds. In recent years, many of these pension funds have slipped into “endangered” or even “critical” status, and employers who have exited these funds have been hit with substantial assessments of withdrawal liability. These assessments often amount to millions of dollars in withdrawal liability.
Many employers are unfamiliar with the complicated procedures for contesting an assessment of withdrawal liability from a multiemployer pension fund. As a result, pension funds win a substantial percentage of litigated cases on procedural technicalities.
In a recent Law360 article, "NLRB Social Media Push Looms Large for Hospitality Sector" (subscription required), our colleague Mark Trapp comments on the importance for unionized and non-unionized hospitality employers to review their social media policies.
Following is an excerpt:
… Continue Reading
With the National Labor Relations Board increasingly interjecting into non-union issues, hotels, restaurants and other labor-intensive hospitality companies need to brace for potential claims and tread carefully when crafting social media policies for employees, experts say.
Over the last few years, the NLRB has been extending its reach — traditionally centered on union or collective bargaining matters — to
Our colleague Kara M. Maciel of Epstein Becker Green wrote a wage and hour update in this month’s Take 5 labor and employment newsletter.
Here’s a preview of the five items:
1. IRS Will Begin Taxing a Restaurant’s Automatic Gratuities as Service Charges
2. The New DOL Secretary, Tom Perez, Spells Out the WHD’s Enforcement Agenda
3. DOL Investigates Health Care Provider and Obtains $4 Million Settlement for Overtime Payments
4. Federal Court Strikes Down DOL Tip Pooling Rule
5. Take Preventative Steps When Facing WHD Audits
Read the full article here.
By: Kara M. Maciel
The following is a selection from the Firm’s October Take 5 Views You Can Use which discusses recent developments in wage hour law affecting the hospitality industry.
IRS Will Begin Taxing a Restaurant’s Automatic Gratuities as Service Charges
Many restaurants include automatic gratuities on the checks of guests with large parties to ensure that servers get fair tips. This method allows the restaurant to calculate an amount into the total bill, but it takes away a customer’s discretion in choosing whether and/or how much to tip the server. As a result of this removal of a … Continue Reading
On June 28, 2013, a District of Columbia restaurant sued its former executive chef to recover the expenses incurred to secure his H-1B visa. See Rasika West End LLC v. Tyagi, No. 13-0004426 (D.C. Super. Ct. filedJune 28, 2013). According to the complaint, the employer entered into a thirty-six (36) month contract with the H-1B employee, and claimed that it would take that long to recover, among other things, funds spent to secure the approved H-1B petition the employee needed to assume the position. The complaint further alleges that the restaurant was … Continue Reading
We’d like to recommend an upcoming complimentary webinar, “Data Privacy and Security in the Hospitality Industry Webinar: Legal Strategies Amid Growing Liability Threats" (Oct. 10, 2:00 p.m. EDT), by our Epstein Becker Green colleagues Kara M. Maciel, Robert J. Hudock, Alaap B. Shah,and Adam C. Solander.
Below is a description of the event:
Privacy and security concerns are natural for businesses in the hospitality industry given the growing use of interconnected electronic data systems to manage transactions and customer accounts. Any information system containing credit card information is a natural target for data theft.… Continue Reading
By: Kara M. Maciel
Many restaurants include automatic gratuities on guests’ checks with large parties to ensure servers get fair tips. This method allows the restaurant to calculate an automatic gratuity or tip into the total bill, but it takes away the customer’s discretion in choosing whether and/or how much to tip the server. As a result of this removal of a customer’s voluntary act, the IRS has decided that it will separately tax automatic gratuities.
On September 18, 2013, our hospitality practice attorneys, Kara Maciel and Mark Trapp, have the pleasure of speaking at the Lodging Conference in Scottsdale, Arizona on key financial and legal issues under the Americans with Disabilities Act impacting hotel owners and managers when acquiring, selling, developing or managing properties.
Under the 2010 ADA Standards, which became effective in March of 2012, hotels must take steps to remove access barriers for individuals with disabilities. The new federal standards encompass some key changes for hotel owners, operators and developers. Our Round Table discussion will focus on hot-button issues facing the hotel industry, including:… Continue Reading
By: Kara Maciel
Last week, I had the honor of attending the Resort Hotel Association’s (“RHA”) Annual Conference at The Edgewater Hotel in Seattle. RHA is comprised of 130 independently-owned resorts, hotels, city clubs and spas in the United States and specializes in insurance programs that address the risks unique to the lodging industry. For the second year in a row, RHA invited me and my colleague, Jordan Schwartz, to speak on the Americans with Disabilities Act (“ADA”) and public accommodations issues that hotel and lodging operators face. The room was packed and due to constant questions from the … Continue Reading
In another major defeat for President Obama’s appointees to the National Labor Relations Board (NLRB or Board), the US Court of Appeals for the DC Circuit found that the Board lacked the authority to issue a 2011 rule which would have required all employers covered by the National Labor Relations Act (the “Act”), including those whose employees are not unionized, to post a workplace notice to employees. The putative Notice, called a “Notification of Employee Rights Under the National Labor Relations Act,” is intended to ostensibly inform employees of their rights to … Continue Reading
The new version features an updated main screen design; added support for iOS 6, iPhone 5, iPad Mini, and fourth generation iPad; improved search capabilities; enhanced attorney profiles; expanded email functionality for sharing guide content with others; and easier access to additional wage and hour information on EBG’s website, including the Wage and Hour Division Investigation Checklist and other resources. The new version continues to be offered … Continue Reading
Epstein Becker Green is pleased to announce its 2013 Hospitality Labor and Employment Breakfast Briefing Series
Epstein Becker Green
945 East Paces Ferry Road
Atlanta, GA 30326-1380
8:30 a.m.- Registration, Breakfast and Networking
9:00 a.m. – Briefing
10:30 a.m. – Question & Answer
MARK YOUR CALENDARS
May 8, 2013
Trade Secrets and Non-Competes for Hospitality Companies
June 12, 2013
Avoiding Wage and Hour Liability in the Hospitality Industry
September 11, 2013
Liability Under Title III of the ADA
October 9, 2013
How to Avoid Liability Through Enforceable Employment Policies and a Well-Drafted Employee … Continue Reading