The 2018 federal appropriations bill signed into law on March 23rd includes an addition to the Fair Labor Standards Act (FLSA) stating that “[a]n employer may not keep tips received by its employees for any purposes, including allowing managers or supervisors to keep any portion of employees’ tips, regardless of whether or not the employer takes a tip credit.” The amendment also nullifies certain regulations issued by the Department of Labor in 2011, including regulations which prohibited an employer from using an employee’s tips as part of an invalid tip pool even where the employer was paying the employees the full minimum wage without utilizing a tip credit.… Read More...

According to the Centers for Disease Control (“CDC”), the United States experiences a flu season each year. With this year’s flu season considered one of the worst since the 2009-2010 pandemic, many employers wish to implement policies to protect the workplace and wonder whether they can implement policies mandating vaccination for their employees.… Read More...

Glassdoor, the website described as “Yelp for workplaces,” claims that 83% of job seekers in the United States read its reviews. For the uninitiated, Glassdoor is a website where anonymous employees and former employees comment on a company’s workplace – sharing information on topics such as salary levels, workplace policies, office politics, and much more.… Read More...

On January 5, 2018, the United States Department of Labor announced that, going forward, it would utilize the “primary beneficiary” test for determining whether interns are employees under the FLSA, consistent with recent rulings from appellate courts. Its updated Fact Sheet #71, a copy of which is linked here, explains the test, which examines “the ‘economic reality’ of the intern-employer relationship to determine which party is the ‘primary beneficiary of the relationship.” Fact Sheet #71 outlines 7 factors that courts should apply on a fact specific basis in making this determination, with no single factor being dispositive:

  1. The extent to which the intern and the employer clearly understand that there is no expectation of compensation.
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A recent article in The New York Times questioned the propriety and effectiveness of a sexual harassment investigation conducted by a company’s Human Resources Department. The article noted the “inherent conflict of interest” at play because HR departments “while officially responsible for fielding employee complaints, also work for a company that faces potential liability.” The authors’ conclusion was that “[t]he result can often be that human resources personnel are more inclined to suppress allegations than get to the bottom of them.”

While I would question the above characterization/conclusion, and my own experience with HR-led internal investigations is that the great majority of HR departments conduct fair, honest, good-faith investigations, the article raises an interesting issue: Should HR departments more often look to outside consultants and law firms to conduct the investigations?… Read More...

Sexual Harassment Complaint Form

The latest headlines confirm the 2016 findings published by the Equal Employment Opportunity Commission (EEOC) that workplace harassment too often goes unreported. The EEOC reports that “approximately 70% of the individuals who experienced harassment never even talked with a supervisor or manager,” meaning that they didn’t report it to their employer.… Read More...

In a decision with potentially huge ramifications for the construction industry, the Fourth Circuit Court of Appeals found that employees of a framing and drywall subcontractor were also the employees of a general contractor for purposes of federal employment laws. Therefore, contractors might find themselves on the hook for their subcontractors’ violations of the law, even if the general contractor had nothing to do with the alleged violation.… Read More...