Recent Ruling on Tip Credits, Tip Pooling and Tipped Employees

The Ninth Circuit Court decision in a recent case was a landmark ruling that favored tipped employees in the debate of tip pooling. It clarifies whether an employer who is not taking a tip credit can do tip pooling, which divides tips among tipped and non-tipped employees. The Issue with Tip Pooling with Non-Tipped Employees The National Law Review  discussed the case of Oregon Rest & Lodging Ass’n v. Perez, which was appealed to the Ninth Circuit Court. The crucial question was whether employers have the right to share the tips of waitresses, bartenders and casino dealers, etc. (tipped employees) with non-tipped employees like busboys, hostesses and floor managers. When a tipped employee works hard to deliver great customer service and as a result of such efforts receives a large tip, then having to turn it over to other non-tipped employees seems rather unfair. What Does the FLSA Say? The Fair Labor Standards Act (FLSA) makes it clear that when employers take a tip credit and pay non-tipped employees less than minimum wage, the tipped employees must receive their tips. However, when the employer does not take a tip credit and tipped employees receive minimum wage or higher, are the tips fair game for pooling among employees? DOL Rule About Tip Pooling The Department of Labor (DOL) established its own rule in 2011 because the FLSA wasn’t clear on this point. The DOL decided tipped employees still deserved their tips and pooling was unfair. Recent Case Conclusion The Ninth Circuit reviewed at the issue from different angles and various precedent setting cases. It also considered the intent of the...

How Do Workers Feel About Overtime Pay?

The federal overtime rule has been put on hold, and employers are waiting to see whether the DOL will effectively appeal the injunction imposed by the U.S. District Court in Texas. However, it’s worth your while to consider what kinds of problems the rule sought to resolve and where today’s workforce stands on certain issues. Today’s Workplace Issues with Overtime With businesses using texting and emails, the line between work and home life continues to blur. Many workers don’t consider the time they spend on texts or emails outside of work as hours working off-the-clock. A Harris Poll conducted in 2016 showed that 63% workers would work-off-the-clock even if doing so was against company policy. Here is what survey done by The Workforce Institute revealed: An overwhelming 81 percent of U.S. salaried employees report they conduct work outside of their standard work hours — often more than once a week. Why Do Employees Work Off-the-Clock? Reasons given include urgent deadlines and heavier-than-usual workloads. One-third of those surveyed said they have more work than they can complete during regular work hours. What Matters Most to Employees? According to a worldwide survey conducted by Ernst & Young, workers struggle to manage work and family. They give underlying reasons for struggles, such as: Expenses have gone up but salaries haven’t Work responsibilities have increased Younger workers now have children, which means more responsibilities at home The lack of opportunity to advance Excessive overtime hours Work environments that don’t encourage teamwork Employers that don’t allow flexible work schedules In fact, lack of flexible work schedules rank near the top as reasons to quit...

What Happens Next with the Overtime Rule?

The U.S. Department of Labor (DOL) had issued a rule that would have doubled the maximum salary a worker can earn and still qualify for mandatory overtime pay. Workers earning less than $47,500 would have been eligible for overtime pay. The rule was scheduled to take effect on December 1. However, 21 states and a coalition of business groups that included the U.S. Chamber of Commerce filed a motion that argued the rule was unlawful. U.S. District Judge Amos Mazzano in Sherman Texas found rule to be unlawful and issued a nationwide injunction regarding it. In his ruling, the judge stated that federal law governing overtime does not allow the DOL to use salary alone to decide which workers qualify for overtime. He quoted in his ruling that the Fair Labor Standards Act, which states overtime exemption applies for executive, administrative or professional duties but said the rule “creates essentially a de facto salary-only test.” The DOL still maintains that its rule is legal and is weighing its options for appeal. President Elect Donald Trump’s Action Regarding the Rule According to Reuters, Trump said in August that the rule was an example of burdensome regulations he would work to address as president, either by delaying implementation or exempting small businesses. Other possibilities are that the DOL under Trump would withdraw the rule or legislation by Congress would change it. Going forward, we will have to see what happens with the overtime rule. In the meantime, employers are relieved about not have to spend greater amounts on paying overtime wages. Stephen Hans & Associates works with business owners to help...

Queens NY Employment Defense Attorneys

Minimum Wage Changes and Tipped Employees When a state legislature approves a minimum wage hike, implementing the changes is more complicated for employers with tipped employees than non-tipped employees. NYS minimum wage increases are set to go into effect on December 31 every year, starting with 2016. However, changes are not uniform for the whole state. Minimum Wage Change Schedule The New York State Restaurant Association (NYSRA) has published the full schedule for minimum wage hikes. Increases are scheduled to take place for: NYC business owners with 11 or more employees from 2016–2019 NYC business owners with 10 or fewer employees from 2016–2019 Business owners in Nassau, Suffolk and Westchester counties from 2016–2021 Business owners in other NY counties from 2016–2020 At the NYSRA website, you can see exactly what the wage changes are for minimum wage workers, food service workers and what the tip credits are that go into effect  each year, on December 31. Who qualifies as a tipped employee and what is a tip credit? Tipped employees are those who customarily and regularly receive more than $30 per month in tips. Employers can use employee’s tips as a credit against its wage obligation to the employee (“tip credit) or in furtherance of a valid tip pool. (FLSA Fact Sheet) Employers can apply the minimum food server’s wage as long as the food server’s tips make up the difference between the food server’s minimum wage and the current minimum wage. What about time spent on work that generates tips vs. work that does not generate tips? Another consideration in paying food servers is how much time they...

Restaurants Weigh in on Replacing Tipping with Service Charges

Queens New York Employment Defense Attorneys Human Resource Consulting Law Firm Various restaurants across the country are in the process of changing tipping into service charges. The Seattle Eater published an article about a restaurant called Mollusk that eliminated tipping and replaced it with a 20 percent service charge. However, after implementing the change, this restaurant and brewery struggled. The Chef/Owner of the business said he split the service charge equally between kitchen employees and front-house employees, who deal directly with customers. Kitchen employees’ wages increased from about $15 to $18 per hour. However, the loss in customers resulted in servers, bartenders and hosts making considerably less money. To make up for income loss, restaurant management cut staff and dropped its lunch menu service in January. The owner had to reinstate tipping and also increased the restaurant’s menu prices by 10 percent to help kitchen staff earn higher wages. Fortunately, the neighborhood is a fast-growing area, and the restaurant hopes to increase its business soon based on population increases. Is the service charge model a failure business-wise? It depends on restaurant management, the location and the extent that customers prefer tipping. The Mollusk wants to go back to the service charge model after it gets the business boost it needs right now. The News Tribune reports that Indochina Asian Dining Lounge in Tacoma, WA implemented an 18 percent service charge in June 2015. As of January 2016, the change was successful and servers average $20 to $25 per hour while kitchen staff earn between $15 and $20. Another restaurant owner in Philadelphia says he is doing well with the...

Governor Cuomo Signs the Bill for Minimum Wage Hikes in New York

Bill signed for Minimum Wage Hikes in New York As far as increasing the minimum wage to $15 an hour, New York State and California are in lockstep. Both governors signed bills on April 4. 2016. New York’s bill is very detailed and the following are some the ways minimum wage increases are to be implemented. Large Businesses (11 employees or more)   Minimum wages increase to $11 by the end of 2016   Minimum wages increase by $2.00 each year after   Minimum wages reach $15 by 12/31/2018 Small Businesses (10 employees or fewer)   Minimum wages increase to $10.50 by the end of 2016   Minimum wages increase by $1.50 each year after   Minimum wages reach $15 by 12/31/2019 Nassau, Suffolk and Westchester Counties businesses   Minimum wages increase to $10 by the end of 2016   Minimum wages increase by $1.50 each year after   Minimum wages reach $15 by 12/31/2021 The rest of NY State businesses   Minimum wages increase to $9.70 by the end of 2016   Minimum wages increase $.70 each year after   Minimum wages reach $12.50 by 12/31/2020 The Director of the Division of Budget in collaboration with the DOL will decide on further increases to reach $15 an hour Analysis and Review The bill also has a built in safety net for increases. In 2019, the state DOB Director is to analyze the effect of minimum wages on each economy region. Based on findings, the Director has the power to suspend minimum wage increases, if necessary. Source: New York State website Of course, complying with minimum wage changes has...