Tag Archives: fair labor standards act

Tipped Employees can still sue under the Fair Labor Standards Act (FLSA) depending on their tasks.

For about thirty years the Fair Labor Standards Act (FLSA) Rule has been that a tipped employee who receives less pay per-hour, because they are a tipped employee, must spend 80% of their time at work doing activities that are tip generating. This means 80% of the employees, time had to be spent on tasks directly related to serving the customer, thereby directly generating tips. Hence, napkin folding, “opening the restaurant,” and other tasks would need to be kept to less than 20% of a tipped employee’s time at work. In November of 2018 the Department of Labor rolled back this Fair Labor Standards Act (FLSA) guidance for tipped employees. However, courts have consistently held that the rule is still in effect, allowing cases to move forward against Buffalo Wild Wings, and Denny’s, as if the rule had not changed. The status of this rule, and how courts will treat it, changes constantly, and depends on the judge, because the Department of Labor rolling back this Fair Labor Standards Act rule for tipped employees was not done in the traditional way that agency rules change.

Whether one assumes that 80% of the time a tipped employee works must be spent on tipped activities to satisfy the Fair Labor Standards Act (FLSA), or less due to the rollback of the rule, what counts as a tipped activity is very specific and defined through hundreds of court decisions. Many activities that restaurants would normally consider tip generating tasks, are not tip generating tasks. It is difficult to know which tasks are tip generating, versus non-tip generating, without a Fair Labor Standards Act (FLSA) lawyer to guide you through the legal swamp that is tipped versus non-tipped tasks under the Fair Labor Standards Act (FLSA). For help in determining if your tipped employees are spending eighty percent of their time on tipped tasks, or if you have been sued by a tipped employee claiming to have done more than the allowed percentage of non-tipped tasks, call Joshua Sheskin at the South Florida Headquarters of Lubell Rosen. – Joshua H. Sheskin,Esq., 954-880-9500, jhs@lubellrosen.com

Workers with Varying Hourly Rates Have Variable Overtime Rates an Employer Must Pay Or Risk Getting Sued Under the Fair Labor Standards Act (FLSA)

Overtime seems like an easy concept; the employee is entitled to 150% of their regular hourly pay for every hour of overtime they work. However, under the Fair Labor Standards Act (FLSA) there are special rules for employees who make different rates throughout the course of the week, and when those different jobs count as independent employment, versus when the work at both jobs must be counted towards the employee’s forty hours per-week. A typical situation where this arises is in a restaurant where an employee sometimes acts as a manager and sometimes as a server, in this case the hours worked as a manager and as a server may or may not need to be added together to determine if overtime is owed, it depends on how you have set up that employment arrangement on paper with the employee. On that note, if management and service is set up improperly, then if the employee makes more as a manager, than they do as a server, you cannot pay them overtime rates based on whether the overtime hours were as a manager or server, nor take the lower of the two numbers.  When an employee has a varying hourly rate, getting the overtime calculation wrong can lead to a very expensive Federal Fair Labor Standards Act (FLSA) suit. If you do not have a contract in place with a worker who does what you think are two separate jobs, a contract that is legally adequate to distinguish the jobs under the Fair Labor Standards Act (FLSA), then you can also face an expensive FLSA lawsuit. For help in avoiding expensive federal lawsuits when paying employees varying hourly rates call Attorney Joshua Sheskin at Lubell Rosen

Strict Time Keeping Rules Are the Only Way to Protect Against Fair Labor Standards Act (FLSA) Lawsuits

 

Often times employers have time records that show they paid an employee correctly, however, even with those records many employers lose Fair Labor Standards Act (FLSA) lawsuits. This is because while these businesses have a time clock, and pay their employees based on the hours that the time clock produces, they fail to have policies that eliminate the possibility of employees alleging that they worked off of the clock. Implementing proper procedures as to when your employee’s clock in and out, and what they must do after clocking out, is essential to avoiding liability in an FLSA suit, because if all you have is a time clock and it shows you paid, the employee will simply claim that they worked off of the clock. It is not as easy as telling employees that they may not work off of the clock, because the definition of work under the FLSA is so broad, and you did not have guidelines in place preventing them from working off of the clock. You do not need to give an employee permission to work off of the clock to owe them pay for off the clock work, they just need to work off of the clock, even if you have a rule against it. A well-written policy and procedure sheet detailing your time keeping rules can save you from tens of thousands of dollars, or more, in liability, and just as much in attorneys’ fees. Having your policies in place, and signatures on policy statements, before an employee attempts to bring a lawsuit, can save your business from paying significant amounts in legal fees, and liability, even if you have a time clock already. Your policies must go beyond prohibiting work off of the clock, and act to prevent any attempt to work off the clock. For help in drafting policies and procedure guides that prevent work from taking place off of the clock contact Joshua Sheskin at the Ft. Lauderdale Headquarters of Lubell Rosen. – By: Joshua H. Sheskin, Esq., 954-880-9500JHS@LubellRosen.com.