U.S. DOL Announces Intent to Repeal Rule Restricting an Employer’s Use of Tips Where No Tip Credit is Taken

APPLIES TO

All Employers

EFFECTIVE

July 20, 2017

QUESTIONS?

Contact HR On-Call

(888) 378-2456

On July 20, 2017, the Wage and Hour Division (“WHD”) of the U.S. Department of Labor (“DOL”) announced its intention to repeal a 2011 rule stating that customer tips are always the property of an employee, regardless of whether or not the employer takes a tip credit, and that employers were prohibited from using tip pooling to subsidize the hourly wages of untipped employees. Further, a DOL spokesperson reportedly told Bloomberg BNA that DOL investigators are forbidden from enforcing the 2011 regulation ahead of the proposed rule.  Once the rule is rescinded, employers who do not apply a tip credit against a tipped employees’ wages will be able to keep or distribute gratuities in any way the employer sees fit.

Second Circuit: Court of Appeals Further Defines Who is Subject to the “Ministerial Exception”

APPLIES TO

All Employers with CT, NY, or VT Employees in Religious Organizations

EFFECTIVE

June 30, 2017

QUESTIONS?

Contact HR On-Call

(888) 378-2456

In Fratello v. Archdiocese of New York, the Second Circuit Court of Appeals provided important guidance on determining whether or not an employee may be classified under the “ministerial exception.”  The “exception” precludes employees who may be classified as a “minister” from making employment discrimination claims against the religious entities that employ them. A “minister” is determined by evaluating, among other things, the employee’s formal title, the substance reflected in the title, the employee’s use of the title, and the important religious functions performed.

Eighth Circuit: Appeals Court Clarifies When Employees Forfeit NLRA Protections Based on Disloyal and Disparaging Activities

APPLIES TO

All Employers with AR, IA, MN, MO, NE, ND, SD Employees

EFFECTIVE

July 3, 2017

QUESTIONS?

Contact HR On-Call

(888) 378-2456

In MikLin Enterprises, Inc., v. NLRB, the Eighth Circuit Court of Appeal reversed, in part, a National Labor Relations Board (“NLRB”) ruling, stating that certain employee activity was disloyal, reckless, and maliciously untrue, losing union-related protection under the National Labor Relations Act (“NLRA”).

Ninth Circuit: An Employer’s Attorney is Subject to FLSA Anti-Retaliation Rules

APPLIES TO

All Employers with AK, AZ, CA, GU, HI, ID, MT, NV, OR and WA Employees

EFFECTIVE

June 22, 2017

QUESTIONS?

Contact HR On-Call

(888) 378-2456

In Arias v. Raimondo, the U.S. Court of Appeals for the Ninth Circuit stated that the anti-retaliation provisions of the Fair Labor Standards Act (“FLSA”) apply not only to employers, but to “any person,” including an employer’s attorney.

Tenth Circuit: Employers Who Take Tip Credits May Keep Customer Gratuities

APPLIES TO

All Employers with CO, KA, NM, OK, UT, and WY Employees

EFFECTIVE

July 3, 2017

QUESTIONS?

Contact HR On-Call

(888) 378-2456

In Marlow v. New Food Guy, the Tenth Circuit stated that employers of tipped employees may keep customer gratuities, as long as the employee is already paid the required minimum wage.  An employer’s retention of tips under this circumstance does not violate the tip credit provision of the Fair Labor Standards Act (“FLSA”).

San Francisco, CA: New Ordinance Regarding Breastfeeding; Salary History Inquiries Prohibited

APPLIES TO

All Employers with San Francisco, CA Employees

EFFECTIVE

January 1 and July 1, 2018, respectively

QUESTIONS?

Contact HR On-Call

(888) 378-2456

San Francisco employers should be aware of two new ordinances that impact workplace practices.  The Lactation in the Workplace Ordinance and the Parity in Pay Ordinance impose new obligations on employers and their managing staff.  Key provisions of each ordinance are described below.

Connecticut: Greater Protections for Pregnant Employees

APPLIES TO

All Employers with CT Employees

EFFECTIVE

October 1, 2017

QUESTIONS?

Contact HR On-Call

(888) 378-2456

On July 6, 2017, Governor Dannel Malloy signed a new law that significantly increases existing anti-discrimination protections for pregnant workers.  “An Act Concerning Pregnant Women in the Workplace” (the “Act”) goes into effect October 1, 2017.  The Act amends the Connecticut Fair Employment Practices Act (“CFEPA”) to add new anti-discrimination protections, provide definitions for “pregnancy,” “reasonable accommodation,” and “undue hardship,” and require employers to notify employees of their rights.

Florida: Medical Marijuana Now Legalized

APPLIES TO

All Employers with FL Employees

EFFECTIVE

June 23, 2017

QUESTIONS?

Contact HR On-Call

(888) 378-2456

Last November, Florida voters approved an initiative to legalize the use of medical marijuana.  On June 23, 2017, Governor Rick Scott signed SB 8-A into law.

As of June 23, 2017, medical marijuana use has been legalized in Florida to treat specific qualifying conditions, such as cancer, epilepsy, glaucoma, or PTSD, among others.  The bill contains additional provisions directing how medical marijuana may be used and obtained; for example, smoking of medical marijuana is prohibited, whereas consumption of marijuana, vaping, or use of oils, sprays, or tinctures is permitted.

Importantly, the bill also includes employer-friendly provisions that allow businesses to still enforce a drug-free workplace, such as:

  • Employers may establish, or continue to enforce, a drug-free workplace program or policy;
  • Employers are not required to permit use of medical marijuana at the place of employment;
  • Employers are not required to accommodate the use of medical marijuana in the workplace, or to accommodate any employee working under the influence of marijuana;
  • Medical marijuana is not reimbursable under the Florida Workers’ Compensation law; and
  • SB 8-A does not create any cause of action against employers for wrongful discharge or discrimination related to use of medical marijuana.

Employers with and without policies addressing substance abuse may are recommended to specifically address the organization’s position on medical marijuana use.

Action Items

  1. Read the text of SB 8-A here.
  2. Have handbooks and policy documents reviewed regarding substance abuse to address medical marijuana use.
  3. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2017 ManagEase, Incorporated.

Massachusetts: Employers Must Follow Disability Accommodation Rules for Employees Using Medical Marijuana

APPLIES TO

All Employers with Massachusetts Employees

EFFECTIVE

July 17, 2017

QUESTIONS?

Contact HR On-Call

(888) 378-2456

The Massachusetts Supreme Judicial Court recently ruled that an employee may pursue a disability discrimination claim under state law against an employer for failure to accommodate the employee’s use of medical marijuana.  In Baruto v. Advantage Sales and Marking, LLC, the plaintiff was told after accepting an offer of employment that she needed to complete a successful drug test.  She informed her employer that she would fail the test due to medical marijuana use for Crohn’s disease. However, she agreed that she would not use marijuana before or during work. The plaintiff failed the drug test as predicted, and ultimately was terminated as a result based on federal law’s treatment of marijuana.

Massachusetts: Increased Employer Responsibilities to Accommodate Pregnancy

APPLIES TO

All Employers with MA Employees

EFFECTIVE

April 1, 2018

QUESTIONS?

Contact HR On-Call

(888) 378-2456

Recently signed into law on July 27, 2017, the Massachusetts Pregnant Workers Fairness Act (the “Act”) goes into effect on April 1, 2018 and builds on existing anti-discrimination regulations. The Act specifically requires employers to provide accommodations for the needs of pregnant Massachusetts employees, including accommodations for nursing mothers, and new notice and recordkeeping requirements.