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  The Ninth Circuit Clears the Way for Tip-Pooling Arrangements.Littler Mendelson, P.C. - March 09, 2010 Hospitality and tourism employers should greet news of a favorable Ninth Circuit Court of Appeals decision with joy and a big sigh of relief. In Cumbie v. Woody Woo, Inc., No. 08-35718 (Feb. 23, 2010), the court confirmed that the Fair Labor Standards Act (FLSA) allows employers that do not take a tip credit against the federal minimum wage to pool tips and allow all hourly employees – not just those who have in-person interaction with guests – to receive a portion of the "tip pool." The opinion brings clarity (and much needed legal support) in an area where confusion as to the rule of law and expensive litigation had caused uncertainty and reticence. Report Link Dealerships Working 24/7: Issues to Keep In Mind.Fisher & Phillips, LLP - February 04, 2010 Many Toyota dealerships have announced that they will remain open 24 hours a day in order to fix the accelerator problem that has prompted the recent recall of several models. This unprecedented step is likely to raise a number of employment law issues for the affected dealerships, and may serve as a model for any other companies that may face similar issues in the future. Report Link Are Your Tipped Employees Doing Tipped Work?Ogletree Deakins - November 03, 2009 The wage and hour laws are outdated and compliance is exceedingly difficult in light of the way in which most hotels and restaurants are required to operate. But, you already knew these facts. Recent tip credit and tip pooling cases continue to highlight the problems and we will be addressing tipped employee issues in this and future editions of the Hospitality eAuthority. Report Link Salvador Simao Sheds Light on Tip Credit Complexities (pdf).Littler Mendelson, P.C. - August 17, 2009 In this attorney-authored article, Salvador Simao of Littler's Newark office explains how a restaurant employer should calculate the tip credit for an employee who performs a variety of tasks that are both tipped and non-tipped. In addition, Simao explains how to calculate overtime for an employee who has dual roles in his or her position. Report Link Overtime Issue for Home Care Workers is Alive as Senators Press to Have US DOL Regulations Altered or Reinterpreted.Ford & Harrison LLP - July 01, 2009 What Happened Two Years Ago... In Long Island Care at Home, Ltd. v. Coke, 549 U.S. 1105 (June 11, 2007), the Supreme Court deferred to the U.S. Department of Labor's interpretation of its own regulations and unanimously held that home care workers employed by third party employers or agencies were exempt from overtime under the "companionship exemption" to the Fair Labor Standards Act. Coupled with the overtime exemption available to non-profit agencies in New York (where Medicaid funded home care can be 24/7) who had timely filed a Statement of Non-Profitmaking Institutions with the NYS Department of Labor, this fully exempted those agencies, in particular, from overtime pay to home care workers. Report Link Retail Industry Update: How Did They Manage? Part Two.Fisher & Phillips, LLP - June 01, 2009 In the last issue of Retail Industry Update (March, 2009) we looked at the facts of Morgan v. Family Dollar Stores, an overtime lawsuit, which resulted in a jury verdict of over $35 million. The case was affirmed on appeal, and turned principally on the issue of how much actual control store managers had over the day-to-day operations in their outlets. Report Link Dealership Update: Out of the Frying Pan, Into the Fire.Fisher & Phillips, LLP - November 11, 2008 As the economy shows no immediate sign of recovery, dealers continue to look for ways to reduce their expenses. One area that they usually focus on is labor costs. Most dealers have already trimmed their workforces by not replacing employees who have left, or by out-and-out layoffs or reductions-in-force. Some dealers have also revised or restructured employee pay plans to reflect the current economy. Report Link Are You Vulnerable to a Tip-Pooling Claim?Fredrikson & Byron, P.A. - August 27, 2008 Employers increasingly face litigation under the wage and hour provisions of federal and state law, which include minimum wage, overtime pay, and equal pay requirements. A recent California decision may give plaintiffs’ lawyers yet another wage and hour issue to seize upon: tip-pooling. Report Link Hospitality Labor Letter: Sailing Away With the Tips.Fisher & Phillips, LLP - June 05, 2008 Cutting into potential profits, New York's highest court rules that restaurants may not pocket mandatory service charges that are represented to customers as gratuities for the wait staff. Report Link Court Challenges of Tipping Practices May Affect Many Industries.Jackson Lewis LLP - April 10, 2008 Employers in a variety of industries where employees receive tips should expect court challenges to their tip practices in the wake of several recent high-profile rulings, caution attorneys from Jackson Lewis LLP, one of the country’s largest workplace law firms. Report Link Implications in Applebee's Case Still Worrying the [Hospitality] Industry.Fisher & Phillips, LLP - March 12, 2008 In our October/November issue, we reported on a troubling interim decision by a federal district court judge in Missouri. The case involved pay for bartender Gerald Fast, and focused on two issues: whether the restaurant's automated timekeeping resulted in off-the-clock work (referred to as "Appletime"); and whether the restaurant unlawfully applied the federal tip credit to non-tipped work the bartender was required to do, in addition to his other duties. Report Link Pay for “Tipped Employees” Under the Florida Minimum Wage Act.Ford & Harrison LLP - January 14, 2008 Most Florida employers are aware that the Florida Minimum Wage Act imposes a higher minimum wage than is required by the federal Fair Labor Standards Act. As discussed in our January 3, 2008 Legal Alert, the state minimum wage increased on January 1 to $6.79 per hour (up from $6.67 per hour in 2007). This rate is higher than the current federal minimum wage rate of $5.85 per hour. Report Link Simple Guidelines on Making Your Tip-Pool Legal.Elarbee, Thompson, Sapp & Wilson, LLP. - July 13, 2007 It is common in the hospitality industry for employees to share tips with other employees. In many instances, the practice of sharing tips is required as a condition of employment. Although common, not all practices comply with applicable law, but a successful, legal tip pooling arrangement can help control labor costs. Report Link Supreme Court Upholds Companionship Exemption.Ford & Harrison LLP - June 14, 2007 Third party home care providers breathed a collective sigh of relief yesterday when the United States Supreme Court reversed a ruling out of the Second Circuit Court of Appeals which held that the companionship exemption from the Fair Labor Standard Act's (FLSA) overtime requirements was not valid and binding as it related to third party providers of temporary home care services. Report Link Supreme Court Gives a Helping Hand to Home Healthcare Agencies in Upholding the FLSA's Companionship Exemption to Third-Party Employers.Littler Mendelson, P.C. - June 14, 2007 On June 11, 2007, the United States Supreme Court decided Long Island Care at Home Ltd. v. Coke, U.S., No. 06-593. In a significant victory for third-party employers of companionship workers, the Court held that the Fair Labor Standards Act's companionship services exemption properly applies to third-party employers such as home healthcare agencies. Report Link FLSA Overtime Exemption Applies to Companions Employed by Agencies, Supreme Court Rules.Jackson Lewis LLP - June 12, 2007 Bringing to a close almost five years of litigation, a unanimous Supreme Court has held that home health aides and other companions employed by third parties are not eligible for overtime compensation under federal law. In its June 11, 2007, decision, the Court upheld a longstanding interpretation of the United States Department of Labor, while overturning a contrary decision of a federal appellate court in New York. Report Link Is $2.13 An Hour Enough? Higher State Minimum Wage Rates Impact Tip Credit.Fisher & Phillips, LLP - April 23, 2007 With employers making adjustments in their payroll systems, some of those in the hospitality industry are wondering how a state’s higher minimum wage rate impacts the tip credit. Report Link Argument Before The Supreme Court Reflects Divergence of Opinion Over Companionship Exemption.Jackson Lewis LLP - April 18, 2007 Must employers pay home health aides overtime? Report Link Is $2.13 An Hour Enough? Higher State Minimum Wage Rates Impact Tip Credit.Fisher & Phillips, LLP - March 30, 2007 Many employers are nervously awaiting the possibility of a new federal minimum wage under the FLSA, while others must deal with increases already passed at the state level. Report Link Supreme Court Set To Hear Oral Argument On FLSA Companionship Exemption.Jackson Lewis LLP - March 28, 2007 The Supreme Court is set to decide whether employers must pay overtime to home health aides under the Fair Labor Standards Act (FLSA). Report Link Both Workers and Employers Should Know Tip-Pooling Laws.Fisher & Phillips, LLP - March 13, 2007 Tip pooling is a way of life in certain establishments. Tip-oriented businesses from restaurants to golf courses can, under the law, require tipped employees to share that money with other employees. Report Link Dealing With Employees' Tip Income In Large Food and Beverage Establishments: New IRS Agreement ("ATIP") Available January 1, 2007.Littler Mendelson, P.C. - September 28, 2006 Employers that have a lot of tipped employees, such as restaurants and casinos, often face a host of employment law challenges, including payroll challenges. Under the Internal Revenue Code (Code), tips are income subject to income tax withholding and usually subject to Social Security and Medicare taxes as well. Problems often arise when the employer does not know exactly how much tip income an employee receives because of cash tips or because the employees, such as hosts or bussers, are indirectly tipped by other employees, such as waiters. Report Link Home Care Companions to Get Overtime, Says Federal Appeals Court (Again).Jackson Lewis LLP - September 11, 2006 Despite instructions from the U. S. Supreme Court, the U. S. Court of Appeals for the Second Circuit -- for a second time -- delivered a blow to the Department of Labor's "companionship services" exemption to health care aides employed by third-party companies or agencies. The Second Circuit rejected the regulations, finding that they are not supported by the Fair Labor Standards Act itself. Consequently, home health care aides are entitled to overtime pay when working over 40 hours in a workweek in New York, Connecticut or Vermont (and perhaps elsewhere if this ruling is adopted).
Report Link The Department of Labor Issues Opinion Letters Which Are Illustrative of the DOs and DON’Ts of Deducting Fees and Making Other Payroll Deductions From an Employee's Salary (pdf).Phelps Dunbar LLP - June 20, 2006 In a recent wage and hour opinion letter from the DOL
issued earlier this year, the DOL indicated that employers
may deduct from their employees’ tips the “average standard
composite” cost of the processing fees that must be paid to
credit card companies to convert the cash to tips. Report Link Federal Court Affirms Legality of Deducting Credit Card Processing Fees From Servers' Tips.Littler Mendelson, P.C. - April 14, 2006 A federal District Court in Illinois recently confirmed that a restaurant has the legal right to deduct the cost of credit card service charges from tips written by patrons for servers, in Gillis v. Twenty Three E. Adams St. Corp. d/b/a Miller's Pub , No. 04-4012, 2006 U.S. Dist. LEXIS 12994 (N. D. Ill. Mar. 6, 2006). In doing so, the court rejected a class action brought by servers who claimed to be entitled to a refund of the amount deducted. The decision brings greater clarity to the handling of credit card tips and confirms that the U.S. Department of Labor's (DOL) pro-employer position on this issue was correct. Report Link DOL Clarifies Exempt Status Of Paralegals (pdf).Ogletree Deakins - February 21, 2006 The U.S. Department of Labor (DOL) recently issued an opinion letter that examines
whether paralegals and legal assistants are exempt from overtime requirements
under the Fair Labor Standards Act (FLSA). Responding to a question posed
by a law firm with a staff of six paralegals who perform a variety of tasks, the agency
found that “paralegals and legal assistants generally do not qualify for the professional
exemption because an advanced specialized academic degree is not a standard
prerequisite for entry into the field.” Report Link DOL Opinion Letter Clarifies Permissible Deductions from Credit Card Tips.Ford & Harrison LLP - February 08, 2006 The U.S. Department of Labor (DOL) recently issued an opinion letter stating that restaurant employers may deduct an average standard composite amount from tips included on customers' credit card payments to recover the charges imposed by the credit card companies for liquidating the tip amounts, rather than deducting the precise amount charged by each credit card company. However, the employer may not deduct an amount that exceeds the employer's actual expenses incurred in transferring to cash the tips charged on a credit card. Additionally, an employer cannot deduct its administrative costs associated with credit card transactions from an employee's tips. Report Link No free rides on 'imposed gratuities' for chauffeurs (pdf).Jones Walker - November 10, 2005 The Fair Labor Standards Act (FLSA) requires you to pay employees the federal
minimum wage and overtime when they work more than 40 hours in a workweek. The FLSA
provides certain exemptions for employees who receive tips. In some circumstances, you may
pay tipped employees a base hourly wage of less than the federal minimum wage because the tips
they receive are counted as part of their wages. That “tip credit,” however, is allowed only if
certain requirements are fulfilled. The U.S. Department of Labor (DOL) recently issued an
opinion letter that addresses the question of whether an employer may apply an “imposed
gratuity” toward its tip credit and explains the tip credit and overtime calculation for tipped
employees in detail. Report Link "Companionship Services" OT Exemption Does Not Apply To Home Healthcare Workers of Third-Party Employers.Jackson Lewis LLP - August 12, 2004 Home care workers employed by home care agencies or other "third parties" are covered by the overtime and minimum wage provisions of the Fair Labor Standards Act and are entitled to overtime pay, according to a new ruling by the U. S. Court of Appeals for the Second Circuit. Report Link Can Golf Pros be Paid as Independent Contractors for Lessons and Paid as Employees for Work in the Pro Shop?Fredrikson & Byron, P.A. - June 24, 2003 Many clubs employ golf professionals to give lessons to club members and also work in the pro shop. A potential problem facing clubs is how these pros should be compensated. Report Link Home Care Nurse Receiving Combination "Fee" and Per Hour Compensation Is Not Exempt from Overtime Pay.Jackson Lewis LLP - April 01, 2002 Discusses Elwell v. University Hosps. Home Care Servs., No. 00-3061 (6th Cir. January 11, 2002), in which the court held that a home health care nurse who was paid a set fee for home patient visits plus an hourly rate for other work she performed in connection with her job was not an exempt professional for purposes of overtime pay under the federal wage and hour law.
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