Tip credits and tip pools — the tip of the FLSA iceberg

No employment law is more misunderstood and misapplied by employers than the Fair Labor Standards Act, our federal wage and hour law. There are more than 8,000 federal FLSA lawsuits filed per year, with nearly one-quarter filed against employers in the accommodation and food service industry … including craft breweries. 

These employers get themselves in legal trouble because of the special manner in which service industry employees are compensated. If you employ workers who customarily and regularly receive more than $30 a month in tips (and every craft brewery does), there are two key FLSA phrases you must understand to avoid FLSA landmines — tip credit and tip pool.

Vacation (all I ever wanted) — 7 tips to encourage your employees to use their paid time off

"AITA for turning my work phone off on vacation?" That's the question that someone recently posted on the eponymous subreddit.

The recently promoted employee disconnected during his vacation. During a moment of downtime, he powered up his work phone, only to find this voicemail from his new manager, demanding to know why he wasn't zooming in for meetings.

I checked my phone voicemail and the unknown number was him saying he "hoped there was a damn good excuse for why I was off the grid" if I wanted to keep my job. He even started out the voicemail with "I'm so sorry you’re in the hospital because that's the only reason I should be needing to hunt you down like this." In slack I had a few dms from coworkers I feel I get along with saying I need to reply ASAP because my absence was impacting them with how mad our boss was.

No, he's not the a***ole.

This dissenting opinion in the United Airlines vaccine-mandate case is 58 pages of pure judicial rage

It's been a little over three months since a federal district court in Forth Worth, Texas, denied a preliminary injunction to a group of unvaccinated employees of United Airlines challenging its vaccine mandate. The court so ruled because the employees, whom United had placed on an unpaid leave of absence, had a viable claim for money damages and with that adequate legal remedy couldn't simultaneously seek an equitable remedy. 

It's been a little over two months since a three-judge panel of the 5th Circuit Court of Appeals declined to issue an injunction pending the appeal of that district court decision. 

Late last week, however, a different three-judge panel of that same appellate court concluded that the employees had established irreparable harm to support their claim for injunctive relief and sent the case back to the district court to reconsider its prior ruling in light of that holding.

WIRTW #614: the “North Star” edition

I spent yesterday at my kids' school, Lake Ridge Academy. With the assistance of Grant Lichtman, an internationally recognized thought leader in the drive to transform K-12 education, I, along with the school's faculty, staff, and administration, some other parents, some students, and my fellow board members, spent the better part of the day brainstorming to determine the school's North Star — the one thing that will move the school forward with us all moving in the same direction, or, to put it differently, the one thing that will make us irresistible.

We learned a lot about us as a school and where we want to be. It was a rewarding, engaging, and energizing exercise from which any organization (or person) would benefit. 

What is your North Star? Or your business's North Star? Share in the comments below.

Here's what I read this past week that I think you should be reading, too.

An employer has disability discrimination problems if the interactive process isn’t interactive

You'd think an employer with the name Opportunities for Ohioans with Disabilities would know a thing or two about complying with workplace discrimination laws. 

You'd think.

A step in the right direction to ending workplace sexual harassment

When is the last time you recall Congress agreeing on anything? Well, it happened last week, when the Senate passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (full text here.)

Simply, once signed by President Biden (which should happen imminently), any agreement that requires an employee to submit a sexual harassment claim to private arbitration, or waive their right to participate in a class or collective action, would be invalid and unenforceable. 

What do you do for a living?

The question, "What do you do for a living," doesn't have a straight-line answer. My law firm bio offers several answers. 

There is a lot to unpack in that bio.

The 4th nominee for the “Worst Employer of 2022” is … the WTF racist

I can't do these truly awful allegations of systemic racism, racist harassment, and retaliation any more justice than the actual allegations from the lawsuit that the California Department of Fair Employment and Housing just filed against Tesla.

They are the worst allegations of workplace racism I've ever encountered. They start with claims of a segregated workplace with the Black section referred to as the "porch monkey station," the "slaveship," and the "plantation," and go downhill from there to include daily utterances of every kind of racist slur (including the n-word, "porch monkey," and "coon") 50 - 100 times per day.

WIRTW #613: the “competition” edition

On July 9, 2021, President Biden issued Executive Order 14036, Promoting Competition in the American Economy. Its goal is to reduce the trend of corporate consolidation, increase competition, and deliver concrete benefits to America's consumers, workers, and small businesses.

To that end, the Treasury Department has been investigating competition in the beer, wine, and spirits industries. Earlier this week, it published its report. 

It details how the government should be working to open up competition in these industries to help the small businesses that fuel it. 

It also makes some specific recommendations, including on the anticompetitive dangers of horizontal consolidation within the industry, and how state laws (such as beverage franchise laws) can be amended to eliminate or mitigate the anticompetitive effects of states' traditional three-tier supply chain system of passing alcoholic beverages from the producer/supplier, to the distributor/wholesaler, and ultimately to the retailer.

If you have any interest in these industries in particular, or more generally as to how the power of state and federal governments can be harnessed to help free enterprise by removing barriers to competition, I recommend reading the Treasury Department's report.

Here's what else I read this past week that I think you should be reading, too.

Peloton’s dubious severance package

Facing the consequences of some poor business decisions and an uncertain future, Peloton made the difficult decision to lay off approximately 20 percent of its workforce, totaling 2,800 employees. 

Perhaps worried about the public relations storm this news would create (and further damage to its already diminished stock price), John Foley, Peloton's now-former President and CEO, and the company's co-founder, took to the company's website to explain the decision. Part of that explanation was an outline of the severance packages being offered to those impacted by the layoff.

We are officially in the Golden Age of Union Organizing. How will your company respond?

Yesterday, the White House Task Force on Worker Organization and Empowerment released its 45-page report on the use of executive branch policies, practices, and programs to promote the Biden Administration's support for worker power, worker organizing, and collective bargaining.

The key takeaway for employers? The Task Force has recommended that the federal government use its "authority to support worker empowerment by providing information, improving transparency, and making sure existing pro-worker services are delivered in a timely and helpful manner." 

Yikes! 😱

How will the federal government accomplish this?

An employee can’t sue over a job never applied for

Staci Russell, a dean at Cornerstone Health High School, sued her employer for sex discrimination after she was passed over for the open principal position. Her problem? She never applied for the position.

Based on that fact alone, the 6th Circuit had little difficulty affirming the dismissal of her lawsuit.

Russell concedes she did not apply for the vacant principal position. … Russell never applied or interviewed for the position, nor did she indicate interest. While Cornerstone named Price principal of the combined high school on January 24, 2020, after Russell filed her EEOC charge, Russell does not provide evidence showing that Cornerstone’s decision to combine two high schools and name Price principal of the combined school occurred as a result of her filing an EEOC charge. Russell thus did not establish a prima facie case of discriminatory failure to promote.

Thank God for common sense judicial decisions. If an employee fails to apply for a job, it's really hard to claim discrimination when that job goes to someone else who actually did apply.

Jon and the Social Media Pub Crawl

A big thank you to Allessandria Polizzi for having me as a guest on her Be Verdant Podcast. We took a 40-minute tour through the state of employment law and employee relations in early 2022. She called in a "pub crawl" since we quickly hit a bunch of issues instead of spending our time together taking a deep dive into just one. It was fun to record and a fun listen.

Enjoy. 

Find it embedded below or wherever you get your podcasts.

WIRTW #612: the “when I went to college” edition

I turn 49 years old in nine days. I was recently reminded of my age when I came across this blog post from my alma mater, Binghamton University (née SUNY Binghamton): You Know You Went to SUNY Binghamton When…

Among the pearls of days gone by that Gens Y and Z could not possibly wrap their younger brains around?

🍻 I drank in an on-campus pub

✍️ I waited in line in the gym to register for classes on paper

👀 Everyone knew my social security number

What has changed since you attended college that would shock those younger than you? Share in the comments below.

Here's what I read this week that I think you should be reading, too.

Brian Flores burns down the house in his lawsuit against the NFL … and makes himself unemployable in the process

If you haven't read the lawsuit Brian Flores filed against the NFL and three of its franchises, you should. It reads like a law school employment law exam question. It has allegations of systemic and endemic racial discrimination, fraud, bribery, and Bill Belichek inadvertently providing the smoking gun text message.

This lawsuit will likely bring much-needed change to the NFL's hiring practices. It will also likely mark the end of Flores' coaching career. I'd be shocked if he ever coaches again.

The 3rd nominee for the “Worst Employer of 2022” is … the cancerous employment canceler

"Focus on your health," is a nice sentiment for an employer to share with an employee who is awaiting the results of cancer testing. Coupled with a termination letter on the eve of the employee returning to work from said testing? That will earn you a nomination for 2022's Worst Employer.

The EEOC has the details in this news release.

Coronavirus Update 2-1-22: I just gave my kids the worst business trip souvenir ever

In the before times, when I actually traveled for business, I'd always try to come home with a souvenir for the kids. A t-shirt, a stuffed animal, something small, but at least something so they knew I was thinking about them when I was gone.

Two weeks ago, I got to travel for work again — this time to Cincinnati for the annual Ohio Craft Brewers Conference. Never fear, I did not forget to bring home a souvenir for the kids. While certainly memorable, it's one that they would certainly rather forget.

I brought them Covid-19. 😥🦠🤒

Thankfully, our Covid experience was mild and we all survived with varying degrees of minor symptoms along with five days of isolation. 

On this week's episode of The Norah and Dad Show, Norah and I talk about our experience with Omicron. We discuss how we handled having the virus, life during isolation, what we missed from the past 22 months of trying to act responsibly, and what we’re looking forward to doing now that we have our super-immunity. We also discuss the dangers of late-night milkshake deliveries and, notwithstanding, how ice cream makes everything better.

You can listen on Apple Podcasts, Spotify (yes, we're still there, even though Joe Rogan spews dangerous garbage), Google Podcasts, the old-fashioned web browser, and wherever you get your podcasts.

Coronavirus Update 1-31-22: Employees should not be choosing between their jobs and working while ill

I return to the office today after a one-week Covid-inducted work-from-home hiatus. I'm fortunate that as a professional I have the ability and flexibility to work from home when needed. Many too many employees, however, do not have that luxury.

Consider, for example, this report from Business Insider, that 63 percent of Red Lobster employees came to work while sick with Covid-19, either because they lacked paid sick leave or because they couldn't find anyone to cover their shifts. 

WIRTW #611: the “masthead” edition

Early on in the pandemic, I rebranded and renamed the Ohio Employer Law Blog to the Coronavirus Law Blog. The change was part marketing savvy and part recognition of the reality that for the then-foreseeable future the Covid-19 pandemic would be all that mattered to employers. 

Nearly two years later? The name and masthead remain the same.

Yet, even with Omicron keeping cases at near-record numbers, hospitals still full, and Covid still claiming thousands of American lives per day, it's at least starting to feel as if we are rounding the corner into the home stretch of the pandemic.

So don't worry. I'll let you know when the pandemic is over. It'll be when I change the masthead back to this:

Here's what I read this week that I think you should be reading, too.

Coronavirus Update 1-27-22: Whole Foods 1 – Maskhole 0 😷

You have every right to believe that masks are a form of government control or a satanic tool. You're very wrong, but you are free to believe what you want to believe. 

What you aren't free to do, however, is to act on those beliefs when they run counter to the rules of the employer for which you work or the business you want to enter. 

Case in point: Manning v. Whole Foods Market Group.