Recent developments show that employers face both incentives and threats from the Obama Administration designed to ensure that employees know of their right to engage in “whistleblowing” (i.e., sharing possible unlawful activity with government agencies). Two recent examples are the federal Defend Trade Secrets Act (DTSA) and recent enforcement actions by the Securities and Exchange Commission (SEC).
Continue Reading Increasing Pressure Toward Employer Transparency
Bob Horton Content Cited in Leading Guide on Healthcare Valuation
The authors of the BVR/AHLA Guide to Healthcare Industry Finance and Valuation cited content from Bob Horton’s 2013 Member Briefing, “Restrictive Covenants in Physician Employment Relationships.” Bob’s briefing, written for the Labor & Employment and the Business Law & Governance Practice Groups of the American Health Lawyers Association (AHLA), outlines the enforceability of
Attorneys React To High Court’s Constructive Discharge Ruling
Bass, Berry & Sims attorney Bob Horton provided insight to Law360 on the Supreme Court’s ruling in Green v. Brennan allowing the constructive discharge claim period to begin when an employee resigns, not when the employer commits the last allegedly discriminatory act. As Bob points out in the article,
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Affirmative Action Plans – Your Common Questions Answered
Bass, Berry & Sims attorney Bob Horton authored the article, “Affirmative Action Plans – Your Common Questions Answered,” that was published by Contract Management magazine in the January 2015 issue. In the article, Bob answers some of the most common questions that are asked when a company is tasked with preparing an affirmative action plan.
Do Bouncers Provide Customer Service? The Challenges of Tip Pooling
On February 13, 2012, the federal district court for the Middle District of Tennessee granted conditional certification of a class action case under the Fair Labor Standards Act (“FLSA”) against Coyote Ugly saloons. As reported by Law360, the court conditionally certified several distinct classes, the most interesting of which is all employees who “worked as bartenders, barbacks, or waitresses at any company-owned Coyote Ugly saloon at any time within the last three years who were required to contribute their tips to a “tip pool” in which security guards also participated.” Under the FLSA, an employer may take a “tip credit” against the minimum wage owed to employees. That is, an employer may pay a tipped employee $2.13 an hour under the FLSA (note that the amount of the tip wage can vary by state or local law), and then rely on the tips received by a server to make up the difference between $2.13 and the minimum wage. (If the tips received by the employee are insufficient to bring the employee’s compensation up to minimum wage, the employer must make up the difference.)
The FLSA also permits a “tip pool”; that is, an employer may require servers to contribute a portion of their tips to a tip pool and then pay out the funds in the tip pool to other employees who “customarily and regularly” receive tips (See Wage and Hour Fact Sheet #15: Tipped Employees under the Fair Labor Standards Act). Such a rule immediately reveals the nature of the challenge in complying with the FLSA regulations regarding a tip pool. If the employees “customarily and regularly” received tips directly, they wouldn’t need to be in a tip pool! The regulations and case law have gradually come to define an employee who “customarily and regularly” receives tips as an employee who participates in directly providing service to the customer – such as the hostess at the front door and perhaps a busboy or bartender (as opposed to the dishwasher in the “back of the house”.) One of the factors used to determine whether an employee may be paid out of the tip pool is the extent to which they have any “face-to-face” contact with the customer. See Kilgore v. Outback Steakhouse of Florida, Inc., 160 F.3d 294 (6th Cir. 1998).
Continue Reading Do Bouncers Provide Customer Service? The Challenges of Tip Pooling
DOL Proposes New Rules Severely Limiting Home Care Worker Exemption
In a move that could significantly increase employer costs in the home care market, the Department of Labor has published proposed rules that will severely limit the current minimum wage and overtime exemptions for those who provide “companionship services.”
The proposed rules basically do two things:
- The rules narrow the definition of “companionship services. The