Archives for December 2020

The Department of Labor has published new rules that bring the Department’s regulations on “tip-pooling” up to date with the Fair Labor Standards Act as amended by the 2018 Consolidated Appropriations Act (“CAA”).

As a default rule, federal labor law requires all employers pay at least $7.25/hour to their employees. There has been an exception on the books for many years that permits employers to take a “tip credit,” which allows them to pay as little as $2.13/hour to workers who earn tips, such as table servers in restaurants, as long as the workers’ tips make up the difference between the $2.13/hour wage and the federal minimum wage. Under federal law, the employer may only take the “tip credit” and offset wages if the tipped employees are allowed to retain all their tips.

Prior to the 2018 CAA, employers were allowed to both take a tip credit and implement mandatory “tip pooling” between traditionally tipped employees. The law was less clear as to whether employers could implement mandatory tip pooling between traditionally tipped employees (such as servers, bartenders, and other front-of-house workers), and employees who did not traditionally receive tips (such as cooks, dishwashers, and other back-of-house workers). The 2018 CAA attempted to clarify the law, and the Department’s new regulations make it explicit.

Under the new regulations, employers who take a “tip credit” may still only pool tips between employees who work in “traditional” tip-earning roles. E.g., if a restaurant takes the tip credit, it could only pool tips between servers, bartenders, and other tip-earning workers; while any back-of-house employees could not be included in the tip pool.

If, however, the employer pays federal minimum wage for allemployees and does not take a tip credit, then the employer can lawfully implement a mandatory tip pool that includes employees who would not have “traditionally” earned tips. Thus, a hypothetical restaurant could pool tips and distribute them to the front- and back-of-house employees if it pays at least minimum wage to all employees, including servers, for all hours worked.

In either scenario, the CAA and the new regulations prohibit businesses, managers, and supervisors from “keeping,” any tips, which excludes them from participating in any tip pools. The new regulations offer guidance on which employees count as “managers” or “supervisors,” but, unlike the rules on tip-pooling and the tip credit, they do not offer a bright line test.

The potential effects of this new set of rules are uncertain, and the Department of Labor acknowledges as much. On the one hand, the Department theorizes mandatory tip-pooling may foster greater cooperation between workers, which will in turn create a more efficient and profitable workplace for everyone. On the other hand, the Department’s analysis acknowledges a countervailing viewpoint, which is that employers in many states may use mandatory tip pooling to pay lower overall wages to traditionally non-tipped workers, which could result in a $109,000,000 “transfer” of wages from employees to employers every year. Time will tell which theory prevails. Regardless, the new rules will give consistency to tip-pooling practices under federal law.

Reach out To Us For a Free Consultation

If you believe your employer is unlawfully pooling tips, reach out to Haeggquist & Eck, LLP for assistance.

Reach out to us today to schedule a free initial consultation. You can get in touch with someone who can help by calling (619) 342-8000 or by contacting us online.

Employees with disabilities are afforded a number of rights and protections thanks to the Americans with Disabilities Act (ADA) and other legislation at the federal and state levels. Among the most important protections these employees have is the right to request reasonable accommodation when they require assistance to fulfill essential functions in their roles at work.

Conditions where disability accommodation may be required include: (1) a physical or mental disability; (2) medical condition, or (3) pregnancy.

Reasonable accommodation can include the following and more:

• Reserving a parking spot near the worksite entrance (if handicapped parking is full or unavailable)
• Adjusting how an office space is laid out to accommodate wheelchairs and other mobility aids
• Special software that compensates for blindness, deafness, or other sensory disabilities
• Special furniture intended to accommodate a disability
• Swapping non-essential duties with a coworker if they are too burdensome for the disabled employee to perform
• Increasing the frequency or duration of a disabled employee’s breaks
• Establishing an alternative work schedule to accommodate matters related to the employee’s disability

The circumstances under which an employer can successfully deny a reasonable accommodation request are typically very limited. Employees, however, must make their employers aware of their disability and need for reasonable accommodation in order to request it. In most cases, employers are typically obligated to comply or work with an employee to establish mutually aggregable arrangements.

What Does Reasonable Accommodation Typically Cost?

Many types of reasonable accommodation cost employers nothing to implement, while others can cost hundreds or even thousands of dollars. Despite this wide discrepancy, or perhaps because of it, there is no established limit to what reasonable accommodation can cost.

The Job Accommodation Network (JAN), however, cites that nearly 56 percent of employers reported that reasonable accommodation was implemented without cost. Around 39 percent of employers said accommodation was a one-time cost, the median of which was about $500. Interestingly, these same employers indicated that the cost of accommodation for an employee exceeded the typical expenditures for an employee without a disability by a nearly negligible amount (about $20 more).

Because most accommodation can be implemented at either no cost or for reasonably low costs, employers who attempt to deny reasonable accommodation must have a strong argument for doing so. Ultimately, this means they must prove that accommodating an employee’s disability presents undue hardship on the whole company – and it can be very difficult to do so.

Employees with disabilities should feel empowered to make their needs known to their employers, which are typically obligated to comply with nearly any reasonable accommodation request. Those employers that fail to do so – and especially without proving substantial hardship – may be named in a disability discrimination lawsuit and liable for damages.

Do You Need Legal Assistance?

If your request for reasonable accommodation was denied by your employer, reach out to Haeggquist & Eck, LLP for help. Our attorneys represent employee clients in a wide range of employment law disputes, including those involving disability discrimination. We can provide the legal representation you need to achieve the best possible outcome by confronting your employer with legal action.

Learn more about what Haeggquist & Eck, LLP can do for you by scheduling a free initial consultation with our attorneys. Get in touch with us online or by calling (619) 342-8000 today!

For decades, the tech industry has been a male-dominated arena with systematic sexism that has been allowed to persist relatively unchecked. Some strides toward equal treatment for all employees in this field have been made in recent years, but a recent survey from the nonprofit organization Women Who Tech demonstrates there’s much more to be done.

In a survey of more than 1,000 tech industry employees, founders and investors, Women Who Tech found that 70% of women in the tech industry stated they were treated differently than men at work.

Here are some key insights about Harassment of Female Tech Employees uncovered by Women Who Tech’s recent survey:

• 48 percent of women employees experienced harassment, compared to 11 percent of men
• 43 percent of employees who said they were harassed were sexually harassed – 18 percent of these respondents said they were offered a promotion in exchange for sex
• 45 percent of women employees reported harassment; as many as 67 percent said they didn’t trust how their company would handle allegations of harassment
• 44 percent of women founders said they have experienced harassment
• 41 percent of women founders who were harassed said they experienced sexual harassment
• 40 percent of women founders said they were harassed by an investor, 59 percent of this amount reported quid pro quo sexual harassment

What Can Women in Tech Do if they Experience Discrimination or Harassment?

As employment law attorneys, perhaps one of the most troubling statistics for us is that 67 percent of women in the 2020 survey said they didn’t trust how their company would handle harassment allegations if they came forward.

We understand that someone’s willingness to report harassment and unfair treatment often depends on what they expect to come of it.

By engaging with an employment law attorney, you can have a legal advocate at your side to walk you through the reporting process. Your company is required to address your allegations promptly and take action if there is sufficient evidence that mistreatment is taking place

If you have been discriminated against, treated unfairly, harassed or sexually harassed by your employer or an investor, we encourage you to reach out to Haeggquist & Eck, LLP to schedule a free initial consultation.

Get in touch with us today by reaching out online or by calling (619) 342-8000 to reach someone at our office who can help.