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Tip Pools – March 2018 Update

The 1.3 Trillion Dollar Spending Bill signed by the President on March 23, 2018 contains a pair of provisions that significantly affect tip-pooling, especially within the restaurant, hotel and bar industries. These provisions entirely negate a Department of Labor (DOL) proposal from late 2017 that would have enabled employers in these industries who paid a full minimum wage to keep some or all of the tips for themselves.

The first provision is that the employer and its managers and supervisors are expressly prohibited from retaining or collecting tips made by employees, regardless of whether or not the employer takes a tip credit. The penalties can be severe for violations – civil penalties up to $1100 per occurrence and damages including the differential lost if a tip credit system was being utilized.

The second provision is that subject to the absolute prohibition on management or supervisory participation, tip sharing is permitted between tipped and non-tipped (examples includes busboys, dishwashers and cooks) employees if and only if the employer is not using a tip credit, ie, paying full minimum wage to all employees. If the tip credit is being taken, tip sharing is not permitted.

Did You Know? Employee Handbooks

Employee handbooks: love ’em or hate ’em, they are a powerful tool for employers and employees alike. Handbooks benefit employees by letting them know at the outset how they are expected to conduct themselves, how they may be rewarded for good work, how to properly request leave, and so on. Handbooks benefit employers by setting forth policies up front; so, in the event an employee runs afoul of the rules, the employee can’t claim ignorance. One huge pitfall with employers, however, is that either their policies are sorely out of date; or, even worse, they don’t have one at all.

At Law Offices of Charles Eiss, P.L., we implore our corporate clients to maintain and use an employee handbook. More than that, we make sure that the policies contained therein are up to date with the current laws and include policies covering new employment issues; such as social network harassment, internet use at work, and BYOD** policies.

I’ve always said that small business owners don’t want to be employers per se. Rather, the boutique owner with a shop in Coral Springs wants to sell her handmade jewelry; and the Greek restaurant owners in Pembroke Pines want to share their family recipes with the neighborhood. However, as these businesses grow, each owner may find that in order to continue meeting the needs of their customers, they must hire employees. With that decision comes a whole slew of new laws to learn and navigate to avoid lawsuits and disgruntled employees. An employee handbook, even in its most simple form, is a valuable tool all employers need to have in their arsenal.

If you are a small business owner in South Florida who wishes to protect your business from litigation, please give us a call.

** Don’t know what this is? Your employee handbook may be out of date!

Did you know? Five Tips for Dealing with Human Resources

I often encounter clients who firmly believe that an employer’s human resources (HR) department is a safe haven for employees. While it is true that if you have a problem at work, your first stop should be to your HR rep, employees should remember that, at the end of the day, HR reps are paid by the employer to protect the interests of the business. Here are some tips that all employees should remember when dealing with an HR department.

Tip No. 1: Keep copies of emails, forms, whatever!

This is really important. If you complain to HR and they have you complete a form (whether you have to sign or not), ask for a copy. You can also take out your phone and take a picture of the form if you can’t get a copy. When you send emails to HR reps, send a copy to your own personal email address (check your company’s email policies first!) or print out the email and save if in a folder.

Why should you do this? Because as time passes, people forget things. The great thing about email is that it has names, dates, and the content of what topics were discussed. Also, if something like a termination or suspension occurs, you may not have access to your company email account without notice and you won’t be able to retrieve those important emails. Often times, once an employee is fired, the company will delete or archive those emails; some never to be seen again. If you save your own copies, you won’t have to worry about this!

Tip No. 2: Take Notes

If you speak to HR, jot down a few notes about the discussion right after the meeting/conversation, while everything is still fresh in your mind. Make sure to include the date and the names of those to whom you spoke. HR may ask to follow up at a later date; make sure to include that in your notes as well. If HR does not fix the problem and you have to seek further action, you will want an account of what you spoke about, when, and to whom. No matter how great you think your memory is, notes are always a good idea. The more detailed; the better.

Tip No. 3: Read the Policies before you Sign

With most companies, the first few weeks of employment involve orientation which means reading through (and likely signing) a lot of policies. I know you may be excited to start your new job, but take the time to read through the policies; especially when you are being asked to sign off that you did so.  A lot of employers have handbooks which come complete with a form saying that you received, reviewed, and understood the contents of the handbook. This is more than just a formality; you will actually be held to that statement and if you violate a policy, your signature will rear its ugly head and remind you that you agreed that you read and understood the rules of your new position. Don’t treat this lightly!

Already signed off on policies you didn’t read? Go read them now! Make sure you understand what it is that is expected of you. Can’t find your handbook? Ask for another one or see if it is available online or through your employer’s intranet.

Tip No. 4: Ask Questions

This goes along with Tip 3. If you read your company’s policy on, say, requesting leave and you don’t understand the process…ask HR (this would also be a good time to keep some notes regarding your conversation, see Tip 2). If you don’t ask, and you do the wrong thing, your leave may be denied. Believe me, you’ll want to understand how things work before you need to use them so that you are confident in what you need to do. Who knows? If you don’t follow policies with regard to taking leave, your leave may be denied, causing you problems when you least expect/need.

Tip No. 5: Complain…if you need to.

Many times, clients tell me that they knew something was wrong but never complained to HR for fear of losing their job, or rocking the boat. Generally, it is better to lodge a complaint internally with your HR department at the time you notice something is not right. Often, if an employee has to head to litigation, they will be asked by the attorney for the employer whether they ever complained about X. If the answer is “no,” it may seem to them that it wasn’t important enough to complain about–or worse–that it never happened. Of course, keep notes of your complaint and/or emails (email is best!).  Know the rules your company may have with regard to complaining about discrimination, harassment, violations of law, etc.

 

Disclaimer: Nothing contained in this post is meant to be construed as legal advice. If you require legal advice, contact a qualified attorney in your state. Nothing contained herein is meant to create the attorney-client relationship, and any comments, posts, or replies are not confidential and are not legal advice.

Did you Know? Florida’s Minimum Wage to Increase in 2015

Hopefully the first post in a new series, “Did you Know?” which will serve to inform employers and employees about new (or maybe just lesser known) facts about work.

For all our friends in the Sunshine State, the minimum wage will be raised to $8.05 beginning January 1, 2015 and the minimum wage for tipped employees will rise to $5.03. This increase is due to the Florida Minimum Wage Act which authorizes the DEO (Department of Economic Opportunity) to annually adjust the minimum wage based on a variety of factors.

Employers: make sure you visit the DEO and get the latest minimum wage posters which must be displayed for your employees.

Employees: make sure that your new hourly rate is equal to or above $8.05, or $5.03 if you are a tipped employee, beginning January 1, 2015.

If you are in Florida and need assistance or advice regarding minimum wage and/or overtime, contact us!

Disclaimer: Nothing contained in this post is meant to be construed as legal advice. If you require legal advice, contact a qualified attorney in your state. Nothing contained herein is meant to create the attorney-client relationship, and any comments, posts, or replies are not confidential and are not legal advice.