Workforce Bulletin

The U.S. Supreme Court’s decision in Kasten v. Saint-Gobain Performance Plastics Corp., __ U.S. __ (March 22, 2011), holds that an employee’s oral complaint of a violation of the Fair Labor Standards Act (“FLSA”) constitutes protected conduct under the FLSA’s anti-retaliation provision. 

EBG partner Frank C. Morris, Jr., discusses in an EBG Act Now Advisory the fact that the Kasten decision is merely the latest in an ever-growing series of cases where the Supreme Court has broadly interpreted protections against retaliation and for whistleblowers.  The EBG Act Now ...

By:  Kara M. Maciel

A Maryland federal court recently ruled in Gionfriddo v. Jason Zink LLC that the owner and operator of two taverns could not qualify as a  “tipped employee” under the Fair Labor Standards Act (“FLSA”) and the Maryland Wage and Hour Law despite that he also worked as a bartender at his establishments.  Thus, while he contributed tips to the tip pool arrangement when he worked as a bartender, he could not also share in the distribution of the tips.  The court stated that allowing an owner to participate in a tip pool would broaden the FLSA’s tip credit provisions to a ...

By Robert S. Groban Jr

On February 15, 2011, the United States District Court for the Western District of New York denied a motion to dismiss a complaint by foreign H-2B workers that alleged that their employer violated the minimum wage provisiosn of the Fair Labor Standards Act (FLSA) by refusing to reimburse the workers' transportation, visa and recruitment expenses. See Teoba v. Turgreen Landcare LLC, No. 10-6132 (W.D.N.Y. Feb. 15, 2011).  In Teoba, the plaintiffs seek to represent a class of H-2B workers who were recruited over a three-year period by Trugreen, a landscape ...

By:  Kara M. Maciel and Evan Rosen 

In recent weeks the Obama Administration’s National Labor Relations Board (the “Board”) has been very active in soliciting public comments and amicus briefs on a wide range of decisions and proposed regulations that could drastically change the labor relations landscape. One of these topics are the rules surrounding the scope of union solicitation on a non-unionized employer’s private property. 

We have received many inquiries from our clients about the Board's review of whether to change the solicitation rules. In light of the ...

EBG Partners Peter M. Panken, Frank C. Morris, Jr., Peter A. Steinmeyer, and Michael S. Kun discuss the U.S. Supreme Court’s recent decision in which the Court significantly expanded employee protections against retaliation by employers.  In Thompson v. North American Stainless, LP, __ U.S. __ (Jan. 24, 2011), the Court held that protection from retaliation extends not only to those employees who themselves oppose alleged discrimination or file a charge or otherwise participate in a proceeding, but also to the fiancé of an employee who filed a charge of discrimination against ...

By Allen B. Roberts and John Houston Pope

With virtually no fanfare, a major sector of the American workforce – those who handle food – won whistleblower protections under the FDA Food Safety Modernization Act (“FSMA”), Pub. L. No. 111-353. The Food and Drug Administration (“FDA”) describes FSMA, signed into law on January 4, 2011, as improving food safety by preventing hazards “from farm to table” and making “everyone in the global food chain responsible for safety.”

While much attention and controversy surrounded the whistleblower bounty awards of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”) enacted in July 2010, the potentially more significant whistleblower provision of FSMA passed in the final days of the 2010 legislative session in routine and undramatic fashion. Indeed, the most significant whistleblower portions of the bill did not emerge until a version of the bill was reported out of a Senate committee in mid-November. (No written report explained the major changes written into the law.) Because of the sheer size of the workforce that touches food and the comprehensive definition of “protected activity,” however, the relatively unheralded law extends coverage and companion employer obligations in potentially unprecedented measure. The claims that result could dwarf those arising under whistleblower laws receiving far more media and business attention.

In a recent article “Food Safety and Whistleblowing – New Federal Law May Deliver a Full Basket of Claims,” EBG partners Allen Roberts and John Houston Pope discuss the FDA Food Safety Modernization Act (“FSMA”), which was signed into law on January 4, 2011. 

This new federal law could have a significant impact on restaurateurs, clubs, and other hospitality employers who manufacture, distribute, transport, receive, hold or import food.  FSMA opens wide a new door to whistleblower activity and protection, necessitating employer attention to related compliance ...

By:  Kara M. Maciel

The United States District Court for the Northern District of California has denied certification of a class action against Joe's Crab Shack restaurants on claims that employees worked off-the-clock, were denied meal and rest breaks, and were required to purchase t-shirts to wear at work.  Because the case was handled by our EpsteinBeckerGreen colleagues Michael Kun and Aaron Olsen, we do not believe it is appropriate to comment on the decision or its implications.  If you would like to read the decision, a copy may be found here.

By:  Amy Traub 

Following up on our previous blog posting from November 2, 2010, on December 16, 2010, the New York State Department of Labor issued a new minimum wage order (the “Order”) which will bring immediate changes to the restaurant and hotel industries. Under the Order, employees will be due a higher minimum wage and subject to new tip pooling rules. Meanwhile, employers will need to comply with more stringent recordkeeping requirements. Although employers have until February 28, 2011, to adjust their payrolls, they will still owe their employees back pay as of ...

By: Kara M. Maciel and Forrest G. Read, IV

The U.S. Court of Appeals for the Eleventh Circuit’s recent decision in Diaz v. Jaguar Rest. Group, LLC underscores the importance for hospitality employers to know which job duties their employees are performing in order to assert every potentially applicable affirmative defense when answering an employee’s FLSA lawsuit for non-payment of overtime. In Diaz, the Eleventh Circuit reversed the trial court’s decision that a restaurant, which failed to raise the administrative exemption to the overtime requirement at any point ...