We’d like to recommend an upcoming complimentary webinar, “Addressing and Responding to Workplace Violence and Active Shooter Scenarios to Protect Your Employees” (Oct. 2, 2:00 p.m. EDT), by our Epstein Becker Green colleagues Kara M. Maciel, Susan Gross Sholinsky, and Christopher M. Locke, with Daniel Hess and Lynne Cripe of The KonTerra Group, an employee assistance program provider that regularly counsels employees undergoing stressful life events that can lead to violence.
Below is their description of the event:
Violence in the workplace can range from bullying and ...
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.
In 2012, the IRS issued a ruling to clarify earlier tax guidance on tips, particularly automatic gratuities, but ...
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 ...
By: Kara Maciel, Adam Solander and Brandon Ge
On September 5, 2013, the Internal Revenue Service (“IRS”) released two proposed rules to implement important reporting requirements under the Patient Protection and Affordable Care Act (“ACA”), which will help determine penalties under the Employer Mandate and should be of great importance to hospitality employers.
One rule would require information reporting by insurers, self-insuring employers, and other parties that provide health coverage (“minimum essential coverage”). The other rule would require ...
Demonstrating the importance for employers to review their FMLA practices, an investigation by the U.S. Department of Labor’s Wage and Hour Division (DOL) revealed that T.G.I. Fridays’ FMLA policy and notification practices did not comply with the law. Specifically, the policy did not include information on the FMLA’s military family leave provisions, information on the right to take FMLA-covered leave on an intermittent or reduced schedule basis, and misstated the 12-month employment requirement for FMLA eligibility as being 12 continuous months.
A post on our colleagues' Management Memo blog will be of interest to hospitality employers: "The Senate Has Confirmed a 'Full' 5 Member NLRB That Includes 3 Union Lawyers – Are You Ready?" by Adam C. Abrahms and Steven M. Swirsky of Epstein Becker Green.
Following is an excerpt:
On July 30th the Senate confirmed career union lawyer Kent Hirozawa (D) and retired AFL-CIO Associate General Counsel Nancy Schiffer (D) as well as seasoned management labor lawyers Philip Miscimarra (R) and Harry Johnson (R) to serve on the National Labor Relations Board. The Senate also confirmed ...
A recent article in Bloomberg BNA's Health Insurance Report will be of interest to hospitality industry employers: "ACA's Employer 'Pay or Play' Mandate Delayed - What Now for Employers?" by Frank C. Morris, Jr., and Adam C. Solander, colleagues of ours, based in Epstein Becker Green's Washington, DC, office. Following is an excerpt:,,
The past few weeks have changed the way that most employers will prepare for the employer ‘‘shared responsibility'' provisions of the Affordable Care Act (ACA). Over the past year or so, employers have scrambled to understand their ...
By Kara M. Maciel and Jordan B. Schwartz
A broadly worded settlement agreement between the U.S. Department of Justice and Lesley University extends the Americans with Disabilities Act’s protections to individuals with severe allergies. This new, expansive interpretation of the term “disability” could increase potential legal exposure to failure to accommodate claims under the ADA, making it more important than ever to ensure that your restaurants and bars are equipped to provide reasonable accommodations to individuals with severe food allergies.
| Tips to ... |
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 ...
Our Epstein Becker Green colleague Stuart M. Gerson recently commented in an article titled "4th Circuit Upholds ACA's Employer Mandate, Says Insurance Regulation Within Commerce," by Mary Anne Pazanowski, in Bloomberg BNA's Health Care Daily Report. Following is an excerpt:
A unanimous U.S. Court of Appeals for the Fourth Circuit July 11 declared the Affordable Care Act's employer mandate a valid exercise of Congress's power to regulate commerce under the U.S. Constitution's Commerce Clause (Liberty University Inc. v. Lew, 4th Cir., No. 10-2347, 7/11/13).
In an opinion ...
By Eric J. Conn, Head of the OSHA Group at Epstein Becker & Green, P.C.
Last month, OSHA issued an enforcement memorandum directing inspectors to scrutinize whether employers provide and maintain adequate means of exit;
i.e., unlocked, unobstructed, and clearly marked exit doors and exit routes and doors that comply with 29 C.F.R. 1910 Subpart E - Means of Egress (specifically, the various requirements of 1910.36). The memo was issued in response to a deadly explosion and ammonia release at a poultry processing plant in China on June 4, 2013, in which at least 120 employees lost their lives, many because they were unable to exit the plant due to blocked or locked exits.
In the enforcement memorandum, OSHA announced that:
“During inspections of all workplaces [Compliance Safety & Health Officers] should be mindful of whether the employer has provided and maintained adequate means of egress from work areas; e.g., adequate number of exit routes are provided, exit routes are free and obstructed, and exit doors are not locked.”
This list of items for review is consistent with the criteria OSHA identified in its Emergency Exit Routes Fact Sheet. Here are the basic requirements for complying with 1910.36 set forth in OSHA’s regulations and the Fact Sheet:
- Employers must determine how many exits routes are required in its building. As a general rule, workplaces must have a minimum of two exits, and possibly more based on the number of employees, the size of the building, and the arrangement of the workplace. One exit route may be allowed if the size of the building, its occupancy, or arrangement allows all employees to evacuate safely.
- Exit routes must be maintained unobstructed,
and the exit doors must remain unlocked from the inside. Specifically, exit routes must be free of stored materials, equipment, and especially explosive or highly flammable furnishings. Exits doors must be conspicuous, visible, free of decoration, and unlocked from the inside. - Exit routes and doors must be properly labeled and maintained. Proper labels include signs that read “EXIT” or “TO EXIT” in plain legible letters, and maintained with adequate lighting. Doors or passages along the exit route that are not exits and do not lead to exits must be marked as “NOT AN EXIT” or labeled such that their non-exit purpose is obvious (e.g., store room, office, etc.).
Although the Enforcement Memorandum features the tragic anecdote about the Chinese poultry plant, OSHA’s Director of the Directorate of Enforcement specifically instructs his enforcement team to look out for egress issues in inspections at “all workplaces.”
Bloomberg BNA's Daily Labor Report recently published an article I coauthored with my Epstein Becker Green colleague Adam C. Solander: "For Employers with High Turnover and Large Numbers of Seasonal Workers, the ACA Creates Unique Compliance Issues." (Click to download the article in PDF format.)
Following is an excerpt:
The Affordable Care Act provides unique compliance obligations for employers in certain industries, such as the retail, lodging, restaurant, and grocery sectors, many of which employ large numbers of part-time and seasonal employees, and may comprise ...
I’ve posted a client advisory on the recent ACA employer mandate delay, with my colleagues Frank C. Morris, Jr.; Elizabeth Bradley; and Adam Solander. We explore the ramifications and unresolved issues that employers should consider. Following is an excerpt:
In reaction to employers' concerns about the many difficulties posed in efforts to comply with the Employer Mandate provisions of the Affordable Care Act ("ACA"), the Obama administration ("Administration") announced late yesterday that it is delaying the implementation of the penalty provisions and other aspects of ...
By: Elizabeth Bradley, Kara M. Maciel & Adam Solander
In breaking news, the Obama Administration has now acknowledged the significant regulatory burdens that the January 1, 2014 deadline under the Affordable Care Act would place on employers. Based on reports, the ACA Employer Mandate has been delayed to 2015! We understand that regulatory guidance will be forthcoming this week.
This is welcome news to the hospitality industry and employers across the country who have been struggling with compliance efforts under the ACA.
Stay tuned to this blog and www.ebglaw.com
Our colleague Amy B. Messigian at Epstein Becker Green recently posted “Supreme Court Decision Sets High Bar for Establishing Retaliation Claims Under Title VII” on the Health Employment and Labor blog, and we think hospitality employers will be interested.
Following is an excerpt:
In University of Texas Southwestern Medical Center v. Nassar, one of two employment-related opinions issued on Monday by the Supreme Court, a narrow majority held that a retaliation claim brought under Title VII of the Civil Rights Act of 1964 must be proved according to a strict but for
Our colleague Julie Saker Schlegel at Epstein Becker Green recently posted “Supreme Court Holds That Only Employees Who Have Authority to Take Tangible Employment Actions Constitute Supervisors for the Purpose of Vicarious Liability Under Title VII” on the Retail Labor and Employment Law blog, and we think hospitality employers will be interested. Following is an excerpt:
In a 5-4 decision the dissent termed “decidedly employer-friendly,” the Supreme Court held on June 24, 2013 that only employees who have been empowered by the employer to take tangible employment ...
By: Kara Maciel and Jordan Schwartz
As discussed in prior blogs, due to confusion surrounding FLSA tip pool requirements, the U.S. Department of Labor (“DOL”) Wage and Hour Division enacted a strict rule in 2011 related to proper tip pooling and service charge practices. This rule was met with swift legal challenges, and earlier this week the U.S. District Court for the District of Oregon concluded that the DOL had exceeded its authority when implementing its final rule. See Oregon Rest. and Lodging Assn. v. Solis, No. 3:12-cv-01261 (D. Or. June 7, 2013).
Inconsistent ...
By: David Poppick
Saylavee, LLC v. Hunt demonstrates the willingness of courts, in this case Connecticut, to enforce restrictive covenants that are reasonable in length of time and geographic scope.
The defendant Rhonda Hunt worked as an exercise instructor for an exercise studio called Bodyfit, with whom she signed an agreement restricting her for two-years from becoming involved as an employee “in any business which engages in the same or similar business of the company or otherwise competes with the business of the company within a ten mile radius of any exercise studio owned ...
By: Barry A. Guryan
In a case recently decided by the U.S. Court of Appeals for the Eleventh Circuit (National Labor Relations Board v. Harman and Tyner Inc., d.b.a. Mardi Gras Casino, Hollywood Concessions, Inc., 2013 U.S. App. LEXIS 7555), the Court affirmed a District Court’s decision to reject the National Labor Relations Board’s (“NLRB”) petition to obtain temporary injunctive relief seeking to reinstate six discharged employees pending the outcome of an administrative hearing brought as a result of a NLRB Complaint brought against Mardi Gras. This is one of a ...
By Eric J. Conn, Head of the OSHA Group at Epstein Becker & Green
Introduction
OSHA recently issued a White Paper analyzing the first 18 months of its controversial enforcement initiative known as the Severe Violator Enforcement Program ("SVEP"). Despite mounting evidence to the contrary, the White Paper somehow concludes that the SVEP is “off to a strong start,” and that it “is already meeting
certain key goals,” including:
- Successfully identifying recalcitrant employers who disregard their OSH Act obligations; and
- Effectively allocating OSHA's follow-up enforcement resources “by targeting high-emphasis hazards, facilitating inspections across multiple worksites of employers found to be recalcitrant, and by providing Regional and State Plan offices with a nationwide referral procedure.”
A candid review of the publicly available SVEP data, however, exposes SVEP's underbelly, and casts doubt on the Program’s effectiveness. Most notably, SVEP:
- Disproportionately targets small employers;
- Provokes 8x as many challenges to the underlying citations as compared to the average OSHA enforcement action;
- Encounters significant obstacles in executing follow-up inspections of SVEP-designated employers; and
- Finds virtually no systemic safety issues when follow-up and related facility inspections are conducted.
SVEP Background
We have written quite a bit about the SVEP previously on the OSHA Law Update Blog, but here is some background about what it is, who is being targeted, and what the consequences are. On June 18, 2010, OSHA instituted SVEP to focus its enforcement resources on recalcitrant employers, whom OSHA believes demonstrate indifference to their employees' health and safety. SVEP replaced the much-maligned Enhanced Enforcement Program ("EEP"), a George W. Bush era enforcement program also intended to target wayward employers. The EEP was criticized as ineffective and inefficient because its broad qualifying criteria created so many cases that OSHA struggled to conduct follow-up inspections. OSHA, therefore, scrapped the EEP and instituted SVEP with narrower qualifying criteria and a better infrastructure for pursuing follow-up inspections.
Employers qualify for SVEP if they meet one of the following criteria:
- Any alleged violation categorized by OSHA as "Egregious";
- 1+ Willful, Repeat or Failure-to-Abate alleged violations associated with a fatality or the overnight hospitalization of three or more employees;
- 2+ Willful, Repeat or Failure-to-Abate alleged violations in connection with a high emphasis hazard (e.g., falls, amputations, grain handling, and other hazards that are the subject of an OSHA National Emphasis Program); or
- 3+ Willful, Repeat or Failure-to-Abate alleged violations related to Process Safety Management (i.e., avoiding the release of a highly hazardous chemical).
By Adam C. Abrahms and Steven M. Swirsky
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 ...
By: Kara M. Maciel
The EEOC is holding a public meeting tomorrow, May 8, 2013, to discuss wellness programs and how the EEOC should interpret them under the ADA, GINA and other laws. This is welcome news to the employer community, who has been left without any guidance from the agency since 2000 as to how it will enforce wellness programs. The uncertainty generated by this lack of guidance has hampered businesses from implementing, or expanding, effective wellness programs.
As we have explained in previous articles, the EEOC regulations, and the EEOC’s Interpretive and ...
We are pleased to announce the release of a new version of our Wage & Hour Guide app that puts federal and state wage-hour laws at employers’ fingertips. To download the app, click here
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 ...
by: Adam C. Abrahms, James S. Frank, Kara M. Maciel, and Steven M. Swirsky
President Obama has taken action designed to bolster the National Labor Relations Board’s continuing move to bolster unions and take the National Labor Relations Act further into non-union workplaces. On April 9, 2013, President Obama announced his plan to submit three more nominees to serve the National Labor Relations Board (“NLRB”). If these and the two other pending nominations are confirmed this would bring the NLRB to its full complement of five Members.
These new nominations – who must be ...
By Eric J. Conn, Head of EBG’s OSHA Practice Group
We are asked frequently by employers in the restaurant, delicatessen, and grocery industries whether OSHA’s Personal Protective Equipment (PPE) and Hand Protection regulations require the use of cut-resistant gloves for employees who work with knives or slicers.
Some employers have even reported that OSHA representatives have told them that the use of cut-resistant gloves is mandatory for employees working with knives in food service. Whether food service employees in kitchens, delicatessens, or grocery stores are required to wear cut-resistant gloves, however, is not as clear-cut as OSHA has apparently been suggesting.
What is clear is that OSHA’s PPE standards are “performance-based” standards, not “specification” standards. What that means is, the PPE standards do not proscribe specific PPE for specific circumstances. Rather, the standards defer to employers’ reasonable judgment about what PPE is necessary, for which employees, in which circumstances.
The applicable standard, 29 CFR 1910.138(a), provides:
“Employers shall select and require employees to use appropriate hand protection when employees' hands are exposed to hazards such as those from skin absorption of harmful substances; severe cuts or lacerations; severe abrasions; punctures; chemical burns; thermal burns; and harmful temperature extremes.”
1910.138(a) is part of a series of standards regarding PPE for various parts of the body that stem from a general PPE requirement set forth at 1910.132(d)(1), which provides that:
Employers “shall assess the workplace to determine if hazards are present, or are likely to be present, which necessitate the use
of personal protective equipment (PPE).”
Under the plain language of these regulations, and a long history of enforcement policies and OSH Review Commission case law, if employers perform a good faith hazard assessment in connection with the work activities and equipment at their workplace, and they conclude based on that assessment that employees are not exposed to laceration/amputation hazards or that cut-resistant gloves are not appropriate PPE, and the conclusion is reasonable, then no citation should issue.
A July 3, 1995 Interpretation Letter issue by OSHA confirms this view of the PPE standards:
“What the employer is required to do is to perform a hazard assessment, and OSHA would expect that an employer will be particularly careful before considering that none of its employees in the listed occupations are exposed to hazards which necessitated the use of PPE. In litigation, of course, it would be OSHA's burden to prove that a hazard assessment was not done. OSHA also believes that a standard of objective reasonableness is implicit in the requirement, and that accordingly, OSHA could cite for an unreasonable assessment. Again, the burden of proof would be on OSHA.”
Factors that will impact the reasonableness of an employer’s hazard assessment include:
- The existence of past injuries (i.e., look for lacerations or amputations on past OSHA 300 Logs);
- Employee input (e.g., employees generally dislike gloves in this context because they sacrifice feel and dexterity of their fingers in relation to the blade); and
- The presence of other controls that protect against cuts, such as administrative safe cutting procedures and training, or engineering and equipment controls.
Last year we wrote a post on the OSHA Law Update blog regarding one very significant, recent case impacting this PPE analysis -- Sec’y of Labor v. Petro Hunt LLC, OSHRCJ, No. 11-0873 (June 2, 2012).
By: Kara Maciel and Elizabeth Bradley
On March 8, 2013, amendments to the Family and Medical Leave Act (“FMLA”) take effect which change the provisions governing military caregiver leave for veterans, qualifying exigency leave for paternal care, and job-protected leave for airline personnel and flight crews.
Relevant to hospitality employers, the amendments extend the right to take military caregiver leave to eligible employees whose family members are recent veterans with serious injuries or illnesses, and expand the definition of a serious injury or illness to ...
By: Allen B. Roberts
I wrote the February 2013 version of Take 5 Views You Can Use, a newsletter published by the Labor and Employment practice of Epstein Becker Green. In it, I discuss an alternative view of five topics that are likely to impact hospitality employers in 2013 and beyond. One topic involved the potential for labor organizing by pop-up unions in break-out units.
Despite some perceptions of cohesiveness and political acumen, influence and wherewithal following the 2012 election cycle, labor unions represent only about 7.3 percent of the private sector ...
By Michael Kun
We have written previously in this blog about California’s obscure “suitable seating” law, which requires that some employers provide “suitable seating” to some employees.
In short, the plaintiffs’ bar recently discovered a provision buried in California’s Wage Orders requiring employers to provide “suitable seating” to employees when the nature of their jobs would reasonably permit it. The provision was not designed to cover employees in the hospitality industry who often stand to show that they are ready to assist customers. Instead, it was ...
Epstein Becker Green is pleased to announce the availability of a Wage and Hour Division Investigation Checklist, which provides hospitality employers with valuable information about wage and hour investigations and audits conducted by the U.S. Department of Labor (DOL). Like EBG’s first-of-its kind Wage and Hour App, which provides detailed information about federal and state laws, the Checklist is a free resource offered by EBG.
The Checklist provides step-by-step guidance on the following issues: preparation before a Wage and Hour Division investigation of the DOL; ...
I wrote the January 2013 edition of Take 5: Views You Can Use, a newsletter published by the Labor and Employment practice of Epstein Becker Green.
In it, I summarize five actions that hospitality employers should consider taking in 2013 as the DOL steps up its audit efforts under the leadership of the reenergized Obama administration,
- Assess the Workforce
- Choose Whether to “Pay” or to “Play”
- Evaluate Existing Wellness Programs and/or Implement New Wellness Programs to Enhance Employees’ Health Profiles and to Avoid or Minimize the “Cadillac Tax”
By: Kara M. Maciel, Adam Solander, Brandon Ge and Philo Hall
As we blogged about previously, the Affordable Care Act provides unique compliance obligations for hospitality employers, many of whom employ large numbers of part-time and seasonal employees. On December 28, 2012, the Internal Revenue Service (“IRS”) released a Notice of Proposed Rulemaking (“NPRM”) on Shared Responsibility for Employers Regarding Health Coverage (the “Employer Mandate”) under the Affordable Care Act (“ACA”). The NPRM largely incorporates previously released guidance on ...
By Michael Kun
As we have written before in this space, the latest wave of class actions in California is one alleging that employers have not complied with obscure requirements requiring the provision of “suitable seating” to emploees – and that employees are entitled to significant penalties as a result.
The “suitable seating” provisions are buried so deep in Wage Orders that most plaintiffs’ attorneys were not even aware of them until recently. Importantly, they do not require all employers to provide seats to all employees. Instead, they provide that employers ...
On Tuesday, December 18, Epstein Becker Green attorneys Gretchen Harders, Frank C. Morris, Jr., and Adam C. Solander offered a one-hour webinar titled “What Employers Need to Know Now!” as the second webinar in a series on the New ACA Implementation Regulations: Employer Impact.
The webinar included:
- ACA implementation timeline
- Structure of the law and basic concepts affecting hospitality employers
- Critical employer decision making and planning for 2014
- Alternative plan design options available to hospitality employers
The webinar recording and presentation slides for ...
Please join Epstein Becker Green’s Health Care & Life Sciences, Employee Benefits, and Labor & Employment practitioners as we continue to review the Affordable Care Act and its ongoing impact on hospitality employers and their group health plans and programs.
Since the Presidential election, The U.S. Department of Health and Human Services is moving quickly to implement the Affordable Care Act. Rules have been released in the past few weeks concerning participation in federal exchanges, discrimination based on pre-existing conditions, essential health benefit ...
Please join Epstein Becker Green’s Health Care & Life Sciences and Labor & Employment practitioners in a webinar series for Hospitality employers.
On Friday, November 30, Epstein Becker Green attorneys Frank C. Morris, Jr., and Adam C. Solander offered a one-hour webinar titled “The New Wellness Program Regulations, Part of a Webinar Series on the New ACA Implementation Regulations: Employer Impact.”
The webinar discussed:
- the proposed regulations and the impact these regulations could have on your overall wellness strategy
- areas where employer comment is needed
A posting and distribution requirement added to New Jersey’s prohibition on discrimination in pay went into effect on November 19, 2012. Employers will not, however, be obligated to comply with the requirement until the New Jersey Commissioner of Labor and Workforce Development issues the required notification form.
The notification form will explain the prohibition against gender discrimination in pay, compensation, benefits or other terms and conditions of employment (as set forth in N.J.S.A. § 34:11-56.2).
Once the form is prepared, every New ...
On Friday, November 16, I participated in a free 75-minute webinar discussion with Lafe E. Solomon, Acting General Counsel of the National Labor Relations Board. The webinar was moderated by Terence H. McGuire of the Practical Law Company. We discussed:
- Factors that the NLRB considers when deciding whether to prosecute unfair labor practices based on these employment practices.
- Legal considerations surrounding these employment practices besides compliance with the National Labor Relations Act.
- The NLRB’s stance on what is and is not a lawful at will ...
By Michael Kun
Employers with operations in California have become aware in recent years of an obscure provision in California Wage Orders that requires “suitable seating” for some employees. Not surprisingly, many became aware of this provision through the great many class action lawsuits filed by plaintiffs’ counsel who also just discovered the provision. The law on this issue is scant. However, at least two pending cases should clarify whether and when employers must provide seats – a case against Bank of America that is currently before the Ninth Circuit Court of ...
By Michael Kun and Aaron Olsen
Following up on the California Supreme Court’s recent decision in See’s Candy v. Superior Court, a California federal court has now dismissed a time-rounding class action against H.J. Heinz Company. And, once again, the court has relied upon the decision in our case Alonzo v. Maximus.
This, of course, is more good news for employers with operations in California. Between See’s Candy and Maximus, it will be exceedingly hard for plaintiffs to proceed with time-rounding class actions against employers who have even-handed time-rounding policies ...
By Kara Maciel and Jordan Schwartz
As you know if you are a reader of our blog, in 2010 the U.S. Department of Justice (“DOJ”) published updated regulations under the Americans with Disabilities Act (“ADA”), which adopted the 2010 Standards for Accessible Design (“2010 Standards”). As we explained here, the 2010 Standards contain specific accessibility requirements for a number of types of recreational facilities, including swimming pools, wading pools and spas. As we also reported in this blog here, while the effective date of the 2010 Standards generally is ...
With Election Day tomorrow, employers must be prepared to respond to employees’ request for time off to vote. While there are no federal laws that require such leave, many states require that employees be provided with leave to vote. Some states, such as California, Maryland and New York, require this leave to be paid. Failing to comply with these requirements could result in financial penalties.
As illustrated below, state requirements vary greatly with regard to whether the leave must be paid, when employees are eligible for the leave, the length of the ...
By Michael Kun and Aaron Olsen
Agreeing with the recent federal district court opinion in our case Alonzo v. MAXIMUS, Inc., 832 F.Supp.2d 1122, 1126 (2011), the California Court of Appeals has confirmed in a case against See’s Candy that California employers may round employees’ time entries so long as the employer’s rounding policy does not consistently result in a failure to pay employees for time worked.
In Alonzo, a federal district court granted summary judgment in favor of our client MAXIMUS, Inc. on the plaintiffs’ time rounding claims. The Alonzo Court explained that ...
Kara M. Maciel, contributor to this blog and Member of the Firm at Epstein Becker Green, has released the "HR Guide for Responding to Natural Disasters." Following is an excerpt:
Natural disasters such as hurricanes, earthquakes, and tornadoes have posed unique human resource challenges for employers. While many employers are working around the clock on recovery efforts, other employers find themselves unable to function for extended periods of time because of damage or loss of utilities.
The economic effects of a natural disaster will have long-term consequences on businesses ...
By: Kara Maciel
Hurricane Sandy is approaching this weekend, so hospitality employers along the East Coast should refresh themselves on the wage and hour issues arising from the possibility of missed work days in the wake of the storm.
A few brief points that all employers should be mindful of under the FLSA:
- A non-exempt employee generally does not have to be paid for weather-related absences. An employer may allow (or require) non-exempt employees to use vacation or personal leave days for such absences. But, if the employer has a collective bargaining agreement or handbook ...
By Paul Burmeister*
The National Labor Relations Board (“NLRB”) has ruled that negotiations between the Hotel Bel-Air and UNITE HERE Local 11 were not at impasse when the employer implemented its last, best final offer, which included severance payments to union employees. Hotel Bel-Air, 358 NLRB 152 (September 27, 2012). The NLRB upheld the ALJ’s order for the employer to bargain with the Union and to rescind all the signed severance agreements containing a waiver of future employment with the Hotel Bel-Air.
The Hotel Bel-Air is a luxury hotel located in Los Angeles. The Hotel ...
By Michael Kun and Aaron Olsen
To the surprise of few, the California Supreme Court has decided to review the Court of Appeal’s decision enforcing a class action waiver in Iskanian v. CLS Transportation Los Angeles, LLC.
We wrote in detail about that decision on this blog earlier this year.
In reaching its conclusion, the Court of Appeals relied on the April 2011 United States Supreme Court’s landmark decision in AT&T Mobility, LLC v. Concepcion. Whether the California Supreme Court will follow Concepcion or attempt to distinguish it is impossible to predict. Unfortunately ...
On August 31, 2012, the Internal Revenue Service (IRS), along with the Department of the Treasury, Department of Labor (DOL) and Department of Health and Human Services (HHS), issued guidance under the Patient Protection and Affordable Care Act, as amended by the Health Care and Education Reconciliation Act of 2010 (the “Affordable Care Act”) on the application of the employer responsibility standards to large employers (the employer “play or pay” mandate), IRS Notice 2012-58 , and the 90-day limit on waiting periods for group health coverage, IRS ...
By Michael Kun
EBG’s free wage-hour app, which allows users to access federal law and the laws of many states, has been updated to include Massachusetts law.
The app can be dowloaded here: http://itunes.apple.com/app/wage-hour-guide/id500292238?mt=8
Jeff Landes, Bill Milani, Susan Gross Sholinsky, Dean Silverberg, Anna Cohen, and Jennifer Goldman have prepared an Act Now Advisory on the amendment to Section 193 of New York’s Labor Law, which is scheduled to take effect on Nov. 6, 2012. The amendment expands the list of employee wage deductions that New York employers may lawfully make, so long as the employee authorizes such deductions.
By: Steven M. Swirsky, Adam C. Abrahms, Donald S. Krueger, and D. Martin Stanberry
In another foray by the National Labor Relations Board (“NLRB” or the “Board”) into new territory affecting non-union workplaces, a divided three-member Board panel found that an employer’s direction that employees not discuss matters under investigation with their co-workers violated Section 8(a)(1) of the National Labor Relations Act (the “Act”) because it “had a reasonable tendency to coerce employees in the exercise of their rights” under the Act. Banner Health ...
By: Bill Milani, Susan Gross Sholinsky, Dean Silverberg, Steve Swirsky, and Jennifer Goldman
EBG has prepared an Act Now Advisory on the NLRB’s recent stance on employment-at-will disclaimers, which are generally incorporated in employee handbooks. Two recent claims filed before the National Labor Relations Board in Arizona alleged that language used in employers handbooks regarding at-will employment (and how that arrangement could not be changed) were overly broad and could therefore chill employees’ rights under the National Labor Relations Act.
Now that the Supreme Court of the United States has upheld essentially all of the provisions of the Obama administration's Affordable Care Act ("ACA"), hospitality employers are faced with looming deadlines to bring their group health plans into compliance with the ACA's numerous new requirements. We have prepared for employers a timeline of the highlights of the upcoming deadlines for compliance with the ACA that apply to non-grandfathered group health plans.
Click here to access a copy of the timeline.
Earlier this year, we were pleased to introduce our free wage-hour app for iPhones and iPads. The app puts federal wage-hour law, as well as that for many states, at users’ fingertips.
We have recently added New Jersey law to the app, as well as updated it to reflect changes in California law following the long awaited Brinker v. Superior Court decision clarifying meal and rest period laws.
The app may be found here: http://itunes.apple.com/app/wage-hour-guide/id500292238?mt=8
By Eric J. Conn
In what seems to be a trend, OSHA has again delayed its rulemaking process for an Injury and Illness Prevention Program (commonly known as I2P2) standard. The announcement came during a National Advisory Committee on Occupational Safety and Health meeting in late June. According to OSHA officials, we should not expect the next rulemaking phase, a small business review process, to begin until at least Labor Day. I2P2 programs, which aim to reduce workplace injuries by requiring employers to proactively find and fix workplace hazards, have been on OSHA’s regulatory ...
By: Kara M. Maciel
In April of 2011, the U.S. Department of Labor (“DOL”) changed its rule defining the general characteristics of tips in an attempt to overrule the U.S. Court of Appeals for the Ninth Circuit’s decision in Cumbie v. Woody Woo, Inc. ruling that the FLSA does not impose any restrictions on the kinds of employees who may participate in a valid tip pool where the employer does not claim the “tip credit.”
DOL’s Recent Position on Tip Pool Participation
The DOL’s amended rule provides that tips are the property of the employees, and may not be used by the employer ...
By: Kara M. Maciel and Jordan Schwartz
A recent allegation of disability discrimination from the parents of a three-year old boy with special needs has resulted in a national fitness club chain revising its policies and procedures and implementing staff training. The alleged discrimination occurred after the child had been playing with toys in the fitness club’s Kids’ Club and had refused to move from his position in front of a slide. Upon learning from his parents that he had autism, a staff member informed them that, had the staff known that he was autistic, they would not have ...
By Michael Kun
On Monday, June 25, 2011, the California Supreme Court issued its long-awaited decision in Coito v. Superior Court, addressing the issue of whether a party in litigation could rely upon the work product doctrine to withhold witness statements obtained by its attorneys or the identities of persons who had given such statements.
In short, while parties in California have long relied upon dicta in the Court of Appeal decision known as Nacht v. Lewis for the proposition that such information is protected from disclosure by the work product doctrine, case-by-case ...
By Matthew Sorensen and Dana Livne
One of the major ways in which American employment law has traditionally differed from its British counterpart has been its entrenched employment “at-will” doctrine. The “at-will” employment doctrine provides employers with the right to terminate their relationships with their employees at any time, with or without notice or cause. UK companies doing business in the US are often relieved to be advised that they become “at-will” employers to their US-based employees. In the US, unless an employer has entered an employment contract ...
This week, Washington Legal Foundation published an article regarding OSHA's New Enterprise-Wide Approach to Enforcement, authored by EBG attorneys Eric J. Conn and Alexis M. Downs. The article expands on a February 2012 post entitled "Enterprise Enforcement: OSHA's Attack on Employers with Multiple Locations," here on the OSHA Law Update Blog.
The gist of the article and the prior blog post is that companies that operate multiple facilities in different locations, such as national retail and grocery chains, grain cooperatives, large national nursing and medical care ...
The OSHA/Hyatt Hotels saga continued with a recent exchange of letters between OSHA and the hotel chain’s attorney. In April, OSHA issued a “5(a)(1) letter” to the CEO of Hyatt Hotels, indicated that OSHA believed there were ergonomic risks associated with the daily work activities of the company’s housekeeping staff. The letter put the hotel chain “on notice” that while OSHA did not believe that a “recognized hazard” existed at the time of the inspection, such that a General Duty Clause citation should issue, if the same hazard was later ...
Continuing its effort to “outreach” to non-union employees and educate them on their rights under the National Labor Relations Act, the NLRB has launched a new webpage on Concerted Activity. The NLRB’s announcement of its new webpage made clear the page is designed to inform employees of their rights “even if they are not in a union.”
The webpage, in addition to giving basic descriptions of concerted activities, asserts that “The law we enforce gives employees the right to act together to try to improve their pay and working conditions or fix job-related ...
The OSHA/Hyatt Hotels saga continued with a recent exchange of letters between OSHA and the hotel chain’s attorney. In April, OSHA issued a “5(a)(1) letter” to the CEO of Hyatt Hotels, indicating that OSHA believed there were ergonomic risks associated with the daily work activities of the company’s housekeeping staff. The letter put the hotel chain “on notice” that while OSHA did not believe that a “recognized hazard” existed at the time of the inspection, such that a General Duty Clause citation should issue, if the same hazard was later ...
By: Paul Rosenberg
Last week the National Labor Relations Board (“NLRB”) urged the U.S. Court of Appeals for the Sixth Circuit to uphold its controversial Specialty Healthcare decision. The NLRB’s 3-1 split decision in Specialty Healthcare and Rehabilitation Center of Mobile, overturned a 1991 decision and held that an employer that challenges a proposed bargaining unit on the basis that it improperly excludes certain employees is required to prove that the excluded workers share “an overwhelming community of interest” with those in the proposed unit.
The NLRB ...
By Evan Rosen
Hospitality employers continue to get hit with class action lawsuits alleging that they are unlawfully taking the tip credit for their employees. Under federal law, and the law of most states, an employer may pay less than the minimum wage to any employee who regularly and customarily receives tips. The difference between the minimum wage and the hourly wage rate is called the "tip credit."
This compensation system, when administered correctly, has the advantage of saving employers a significant sum of money. But employers must implement ...
Epstein Becker Green is proud to announce that it has received the 2012 Chambers USA Award for Excellence in the Healthcare category. The results were announced at an awards dinner held on Thursday, June 7, 2012, in New York. Other firms nominated in the Healthcare category included Akin Gump Strauss Hauer & Feld LLP; Hogan Lovells US LLP; King & Spalding LLP; McDermott Will & Emery LLP; Ober Kaler Grimes & Shriver PC; and Proskauer Rose LLP.
The Chambers USA Awards for Excellence are based on research for the 2012 edition of Chambers USA: America's Leading ...
ByMichael S. Kun and Aaron F. Olsen
Earlier this week, the California Court of Appeals issued a ruling in Iskanian v. CLS Transportation Los Angeles, LLC that illustrates how the legal landscape in California has shifted in favor of enforcing arbitration agreements with class action waivers. This, of course, is a welcome development for employers with operations in California, which have been besieged by class action lawsuits alleging wage-and-hour violations for the past 10+ years.
In 2006, the plaintiff in Iskanian filed a putative class action complaint against his ...
The Legal 500 United States, now in its 26th year, collects feedback from more than 180,000 in-house counsel and lawyers to select the leading law firms and lawyers in specific legal practice areas and industries. The Legal 500 is an independent guide, and firms and individuals are recommended purely on merit.
In 2012, both of Epstein Becker Green’s founding practices - Health Care and Life Sciences and Labor and Employment - as well as several individual attorneys, were recognized as leaders in their fields of practice.
For more information about the ranking and to read excerpts ...
We are pleased to announce that “Preparing for Non-Compete Litigation,” a guide published by The Practical Law Company and authored by EpsteinBeckerGreen’s Peter A. Steinmeyer and Zachary C. Jackson, is now available in PDF format. The guide is a valuable discussion of the primary considerations for employers seeking to initiate legal action to enforce a non-compete agreement.
By Kara Maciel and Aaron Olsen
After five years of litigation, a Los Angeles Superior Court has denied class certification of a class action against Joe’s Crab Shack Restaurants on claims that its managers were misclassified as exempt and denied meal and rest periods in violation of California law. The court found that the plaintiffs had not established adequacy of class representatives, typicality, commonality or superiority, and emphasized a defendant’s due process right to provide individualized defenses to class members’ claims.
Because the case was handled by our ...
By Forrest Read
In recent years, the Equal Employment Opportunity Commission (EEOC) has taken the aggressive approach of expanding charges it receives from one or a few individuals into larger-scale class actions in federal courts. Last week, in EEOC v. United Road Towing, Inc., the U.S. District Court for the Northern District of Illinois declined to challenge the adequacy of the EEOC’s administrative practices, thus giving ammunition to the EEOC to continue its approach of widening litigation involving alleged discrimination.
In that case, the employer, URT, argued that the ...
By: Kara Maciel
On March 15, 2012, the U.S. Department of Justice (“DOJ”) had temporarily postponed compliance with the 2010 ADA Standards as it relates to providing accessible entries and exits to pools and spas. That day was set to expire later this month, on May 21, 2012, but the DOJ has announced that it will extend that compliance date to January 31, 2013 – a nine month extension from the original compliance date of March 15, 2012.
This extension to January 31, 2013, however, does not change the substance of the DOJ’s requirement that lifts be “fixed.” The DOJ failed to ...
By: Kara M. Maciel and Elizabeth Bradley
The U.S. Court of Appeals for the D.C. Circuit is rapidly becoming the champion of employers in the fight against the National Labor Relations Board’s (the “Board”) attempt to implement radical new rules governing the workplace.
Last month, on April 17, 2012, the D.C. Circuit enjoined the implementation of the Board’s rule requiring that employers post a notice informing employees of their right to join or form a union. Yesterday, the D.C. Circuit struck another blow to the Board by holding that its proposed union election rules ...
Last week, EHS Today Magazine ran our article in which we delve into more detail about OSHA's amended Hazard Communication Rule (“HazCom”), and the integration of the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals (“GHS”). Check out the full article here, in which we detailed 10 important things employers need to know about the final HazCom Rule. Here's the short list:
- New Hazard Classification Criteria
- New Method for Evaluating Mixtures
- Amended Label Requirements
- Proscrictive Format for Safety Data Sheet
- Inclusion of ...
By Kara Maciel and Casey Cosentino
The restaurant and hospitality industries are no strangers to the tidal wave of wage and hour class action lawsuits. Restaurants and hotel operators located in states with employee-friendly laws like Massachusetts, New York, and California, are particularly vulnerable. This vulnerability was recently confirmed on April 30, 2012, when Texas Roadhouse, Inc. agreed to pay $5 million to settle a putative class action suit filed by wait staff employees from nine restaurants in Massachusetts.
In Crenshaw, et. al, v. Texas Roadhouse, Inc. (No ...
By Jeffrey M. Landes, Susan Gross Sholinsky, and Jennifer A. Goldman, with Teiko Shigezumi
On April 25, 2012, the U.S. Equal Employment Opportunity Commission ("EEOC") issued an enforcement guidance document titled "Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et. seq." (the "Guidance"), with respect to employers' use of arrest and conviction information in connection with employment decisions.
Disparate Treatment v. Disparate Impact
Although ...
By Eric J. Conn and Casey M. Cosentino
In what has been good news for hospitality employers, the past month has been a rough stretch for OSHA in terms of Injury and Illness Recordkeeping enforcement. As we reported last month on the OSHA Law Update Blog, in March, the Seventh Circuit beat back OSHA’s attempt to expand the meaning of “work related” for purposes of determining whether an injury or illnesses is recordable. Then last month, the District of Columbia Circuit further and dramatically limited OSHA’s authority to cite Recordkeeping violations, by insisting that the ...
By Michael Kun
Yesterday, only weeks after its long-awaited Brinker v. Superior Court decision, the California Supreme Court issued another important ruling on California meal and rest period laws.
In Kirby v. Immoos Fire Protection, Inc., the Supreme Court ruled that neither party may recover attorney’s fees on claims involving meal and rest periods. The Court analyzed the legislative history of the meal and rest period provisions and concluded, “We believe the most plausible inference to be drawn from history is that the Legislature intended [meal and rest period] claims to ...
by Carrie Corcoran, Matthew T. Miklave, and Susan Gross Sholinsky
The U.S. Equal Employment Opportunity Commission ("EEOC") has issued a long-awaited final rule ("Final Rule"), which amends the regulation on the "reasonable factors other than age" ("RFOA") defense available under the Age Discrimination in Employment Act ("ADEA"). The Final Rule is available at 29 C.F.R. Part 1625. The EEOC previously published proposed rules regarding the RFOA defense on March 31, 2008, and then on February 18, 2010. The Final Rule takes into account public comments received on those proposals.
By Eric J. Conn and Casey M. Cosentino
For years, OSHA’s Hazard Communication Standard (“HazCom”) has been the standard most frequently cited against hotel and other hospitality employers.
In FY 2011 37 hotel companies were cited for violations of the HazCom Standard, including, primarily, alleged failures to:
(1) maintain a written Hazard Communication Program;
(2) ensure each container of hazardous chemicals (such as cleaning agents) is labeled, tagged, or marked;
(3) maintain a complete set of Material Safety Data Sheets (“MSDS’s”) for each hazardous ...
By: Kara M. Maciel and Matthew Sorensen
Social media has become an increasingly important tool for businesses to market their products and services. As the use of social media in business continues to grow, companies will face new challenges with respect to the protection of their confidential information and business goodwill, as several recent federal district court decisions demonstrate.
Christou v. Beatport, LLC (D. Colo. 2012), Ardis Health, LLC v. Nankivell (S.D. N.Y. 2011), and PhoneDog v. Kravitz (N.D. Cal. 2011) each involved former employees who took the login ...
By Michael Kun
This morning, the California Supreme Court has just issued its long-awaited decision in the Brinker case regarding meal and rest period requirements. It is largely, but not entirely, a victory for employers. A copy of the decision is here.
A few highlights of the decision:
On rest periods, the Court confirmed the certification of a rest period class because Brinker’s written policy arguably did not comply with the law as to the second rest period in a day. In so doing, it clarified when employees are entitled to rest periods:
- Employees are entitled to 10 minutes’ rest ...
By: Jay P. Krupin and Dana Livne
Historically, the United States has continuously attracted international commerce and investment. In recent years, in spite of a challenging economic situation, international hospitality groups continue to seek opportunities in the US for financial growth, promotion, and strategic reasons. When they do so, they must comply with unfamiliar and complex labor and employment laws which are constantly changing. In the US especially, the increasingly litigious environment can affect every step of the enterprise – right from the start ...
by Amy J. Traub, Anna A. Cohen, and Jennifer A. Goldman
Effective April 3, 2012, the Equal Employment Opportunity Commission ("EEOC") extended its existing recordkeeping requirements under Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act to employers covered by Title II of the Genetic Information Nondiscrimination Act of 2008 ("GINA"). The burden on employers to comply with the recordkeeping requirements under GINA will likely be minimal, as employers should already have recordkeeping policies in effect for personnel and other employment ...
By Eric J. Conn and Casey M. Cosentino
Following a March 20, 2012 Press Release, on March 26, 2012, OSHA issued its much anticipated final Hazard Communication Rule ("HazCom"), which integrates the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals (“GHS”) into OSHA’s old Hazard Communication Standard (“HazCom” or "HCS"). The new HazCom Standard requires employers to classify chemicals according to their health and physical hazards, and to adopt new, consistent formats for labels and Safety Data Sheets (“SDS’s” ...
Wage garnishment can pose a number of potential problems for hospitality businesses. This is particularly true where the employee whose pay is subject to garnishment receives tips.
Garnishment is a legal procedure in which an employee’s earnings must be withheld by an employer for the payment of a debt under a court order. When faced with a garnishment order involving a tipped employee, the employer must determine whether all or part of the employee’s tips must be included in the amounts withheld under the garnishment order. This question turns on ...
By: Paul Rosenberg
The National Labor Relations Board (“NLRB”) seems intent upon helping unions organize employees. It continues to pass rules, issue decisions, or announce new policies which will almost certainly facilitate union organizing. The latest example occurred on March 22 when the NLRB announced that in the next two weeks it is launching an “educational” website aimed at informing non-union employees of their rights under the National Labor Relations Act (“NLRA”). In conjunction with this unprecedented website the NLRB is preparing brochures which will ...
By: Jordan Schwartz
Like many attorneys, I spend a significant amount of time traveling, whether it is to meet with clients, take depositions, or conduct training sessions. Business-related travel certainly is not unique to the legal industry. In fact, more and more employees in other industries, including the hospitality industry, are spending a greater amount of time traveling for work than ever before. Such travel typically includes attending out-of-state trade shows, recruiting visits, job fairs, and sales calls. As an exempt employee, compensation for travel ...
Remember that all new H-1B petitions must be filed on March 30, 2012, to ensure that they are counted toward the 2013 H-1B cap.
The annual H-1B season has arrived! The federal government is authorized by statute to approve only 65,000 new H-1B visas each fiscal year, plus an additional 20,000 H-1B visas set aside for applicants who have master's degrees from accredited American universities. The federal government's fiscal year begins on October 1, but the governing regulations permit employers to apply for new H-1B non-immigrant visas up to six months in advance. Hence, the filing ...
By: Kara M. Maciel
Today, March 15, marks the effective date of the 2010 ADA Standards for hotels, restaurants, retailers, spas, golf clubs and other places of public accomodation. As we have written about previously, there are several new requirements and obligations that the hospitality industry must implement in order to ensure their properties are compliant with the new regulations. Below are five steps every hospitality owner and operator should consider to avoid costly fines and lawsuits:
1. Implement new reservation policies for blocking off rooms and ensuring ...
By: Paul Rosenberg
As described in our blog on January 5, 2012, the National Labor Relations Board’s (“NLRB”) new rules governing union elections introduce a host of changes which will place employers at a disadvantage. The new rules will go into effect on April 30, 2012, subject to a legal challenge pending in federal court. However, they are seemingly just the beginning of the NLRB’s concerted effort to drastically change a process which has been in place for several decades. A recent decision ignoring 75 years of precedence is illustrative.
By: Mark M. Trapp
In these challenging economic times, many private clubs are finding it increasingly difficult to attract new members, or to retain existing members. Over the last few years many clubs have lost members, and many more are facing substantial drops in revenues due to a decline in money spent by members on activities such as golfing or dining out. Many golf, country and social clubs are finding it difficult to sustain their amenities and level of service.
Because the economic situation is decreasing the potential membership pool, many clubs are offering incentives to ...
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