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“Sidework” by Tipped Employees = Full Minimum Wage!

Blog Source: Shavitz Law Group

Employers typically are permitted to take a “tip-credit” for tipped employees. This allows employers to pay employees who receive tips to pay less than the federal or state mandated minimum wage. However, employers cannot take advantage of the tip credit for all work performed by tipped employees.

Employers frequently require restaurant servers to spend significant time performing “sidework” instead of waiting on customers. Examples of “sidework” include: rolling silverware; washing dishes, cooking and preparing food, cutting fruit, restocking condiments, and cleaning the restaurant. Federal courts have regularly held that when servers spend more than 20% of their time performing these tasks, they should be paid the full minimum wage of $7.25/hr. for this time and not the “tipped minimum wage” of $2.13/hr. As one court explained, “an employee who spends more than twenty percent of their hours performing non-tipped, related work, can be found to have ceased to be a tipped employee and become a dual-jobs employee such that they must be paid full minimum wage for hours spent performing those duties.” Williams v. Bob Evans Rests., LLC, 2020 U.S. Dist. LEXIS 145852, at *33-34 (W.D. Pa. Aug. 13, 2020).

If you are a tipped employee who performs “sidework” 20% or more of your working time, contact SLG.

Shavitz Law Group is here to help. If you have questions about whether your employer is violating federal requirements, or if you have any other employment concerns, please do not hesitate to call us for a free consultation at (800) 616-4000, or visit us at http://www.shavitzlaw.com for a free, no obligation review of your circumstances and consultation regarding your rights.

YOU EARNED IT, NOW LETS GO GET IT.

Gregg Shavitz, Shavitz Law Group, 951 Yamato Rd Ste 285, Boca Raton, FL and 800 3rd Ave, Suite 2800, New York, NY. Lawyers licensed in states including FL, NY, NJ, and TX. The choice of a lawyer is an important decision and should not be based on advertisements alone.

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Mandatory Gratuities Are Not Tips, But May Be Considered Commissions

Blog Source: Shavitz Law Group

For tipped employees – one of the groups who have been disproportionately negatively impacted by COVID-19 remedial measure – the law surrounding what is considered a “tip” is critical to their compensation. There is a growing trend for restaurants, cafes, and bars to charge customers mandatory gratuities (usually around 20%), similar to service fees charged in many European countries. The question then becomes whether these mandatory gratuities are considered tips for purposes of calculating minimum wages and overtime.

In December, the Court of Appeals for the Fourth Circuit concluded that the mandatory service charges imposed by a restaurant on dining parties of six or more were not “tips” under the FLSA. The Court reversed and remanded the trial court’s determination that the FLSA’s “commissioned salesperson” overtime exemption applied, as well as the trial court’s determination that the tip pool in question was valid. Tom v. Hospitality Ventures, LLC, 2020 U.S. App. LEXIS 37074 (4th Cir. Nov. 24, 2020). Specifically, the Fourth Circuit held that: (1) the “automatic gratuities” at issue were not “tips” because the customer was not authorized to deviate from the required gratuity amount; (2) the automatic gratuities could possibly qualify as “commissions” under the Section 7(i) “retail sales” exemption; (3) even if the automatic gratuities are deemed commissions, they still must be counted as total compensation in determining whether the employer satisfies Section 7(i)’s requirement that “more than half [of the employee’s] compensation for a representative period (not less than one month) represents commissions;” and (4) an employer violates the tip credit rules by distributing tip pool proceeds to restaurant employees whose customer contact is de minimis (adopting the viewpoint expressed by the Fifth and Sixth Circuits).

While the specifics of the Court’s ruling may be technical, if you are tipped employee whose employer has gone to a mandatory service charge business model, you likely will have questions regarding the legality of that plan. The determination of this question will be on a case-by-case basis, depending on the details of the employer’s plan. Therefore, it is in your interest to contact Shavitz Law Group for a free consultation at (800) 616-4000, or visit us at http://www.shavitzlaw.com for a free, no obligation review of your circumstances and your rights.

YOU EARNED IT, NOW LETS GO GET IT.

Gregg Shavitz, Shavitz Law Group, 951 Yamato Rd Ste 285, Boca Raton, FL and 800 3rd Ave, Suite 2800, New York, NY. Lawyers licensed in states including FL, NY, NJ, and TX. The choice of a lawyer is an important decision and should not be based on advertisements alone.

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Shavitz Law Group – Are you being paid for your on-the-job training?

Blog Source: Shavitz Law Group

Many companies require employees to take training courses and complete training modules during their employment.  Some companies require their employees to complete this training while they are at home and not on the clock.  Employees will log into websites and complete required training courses without being paid for the time. 

This practice is especially common in the retail, insurance, technology, food service, and medical professions.  Employees spend substantial time reviewing training materials and studying for exams and quizzes.  They also learn new policies and practices and complete training modules on company websites to demonstrate their knowledge of the materials.  However, companies often do not pay employees for this time. 

The Fair Labor Standards Act and state wage laws require payment for all time worked.  This includes time spent completing required training courses or assignments.  If an employer violates these laws, it could be required to pay for all time worked — plus double damages and your attorneys’ fees and costs.

The Shavitz Law Group, P.A. has represented employees who were not paid for all of their training time and achieved significant settlements for them.  If you believe that you were wrongfully denied pay for training time, do not hesitate to contact us at slg@shavitzlaw.com or at (800) 616-4000 for a free evaluation of your claim.

YOU EARNED IT, NOW LET’S GO GET IT.

Gregg Shavitz, Shavitz Law Group, 951 Yamato Rd Ste 285, Boca Raton, FL and 800 3rd Ave, Suite 2800, New York, NY. Lawyers licensed in states including FL, NY, NJ, and TX. The choice of a lawyer is an important decision and should not be based on advertisements alone.

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Shavitz Law Group – 2021 Ushers in New State Employment Laws

Blog Source: Shavitz Law Group

Workers in America are protected by both federal and state laws. January 1, 2021 is the effective date for several state laws directly affecting workers. At least 18 states enacted laws which impact workers, including California, Colorado, Connecticut, Georgia, Hawaii, Iowa, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Missouri, Nevada, New Jersey, New York, Oregon, Virginia and Washington.

Several of these new state laws address the employee/independent contractor issue. The Virginia legislature passed a law which creates a presumption that a worker is an employee unless either party proves independent contractor status under federal IRS guidelines. This presumption expressly prohibits misclassifying workers as independent contractors and places the burden on the employer to prove that a worker is not an employee. Likewise, Minnesota enacted the Freelance Worker Protection Ordinance, which requires contracts for services to be set forth in writing and provides an enforcement mechanism for failure to pay a worker as agreed upon in the contract. Iowa’s new law establishes the circumstances under which certain independent contractors are not considered employees for purposes of various laws. In Louisiana, the term “employee” is now expressly defined by law and excludes independent contractors from the definition of “employment” for the purpose of unemployment benefits.

These are just a few examples of some of the many new state laws that recently came into effect. If you have questions regarding your status as an employee or any other employment issue. Shavitz Law Group is here to help. Please do not hesitate to call us for a free consultation at (800) 616-4000, or visit us at http://www.shavitzlaw.com for a no obligation review of your circumstances and consultation regarding your rights.

YOU EARNED IT, NOW LET’S GO GET IT.

Gregg Shavitz, Shavitz Law Group, 951 Yamato Rd Ste 285, Boca Raton, FL and 800 3rd Ave, Suite 2800, New York, NY. Lawyers licensed in states including FL, NY, NJ, and TX. The choice of a lawyer is an important decision and should not be based on advertisements alone.
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Shavitz Law Group – Minimum Wage Increases Kick Off 2021

Blog Source: Shavitz Law Group

Twenty states are raising their minimum wages in 2021. The federal minimum wage, which is regulated by the Fair Standards Labor Act, has been $7.25 since 2009. States can set their own minimum wage, which may – and often do — differ from the federal minimum wage.

Even pre-pandemic, federal and state minimum wages failed to increase sufficiently to match the rising cost of living. Although the federal minimum wage is adjusted for inflation, it is worth far less than it was 50 years ago. Moreover, the COVID-19 pandemic has worsened the plight of hourly workers. The resulting recession has directly and severely impacted the retail and restaurant sectors, in which many employees earn a minimum wage. At the same time, low income workers who have faced reduced hours struggle to afford basic living costs.

For years, labor unions and workers’ rights groups have rallied for minimum wage increases. Research demonstrates that raising the minimum wage not only helps lower income workers earn more money, but also helps to increase consumer demand, bolster productivity, and reduce employee turnover. Supporters also believe a higher minimum wage will stimulate the economy, reduce poverty and reliance on government benefits, and help improve growing income inequality.

While Washington has been slow to act, many states have stepped in by raising their minimum wage to an amount more commensurate with a “living wage,” that is, one that provides people with the ability to meet their basic needs. Below is a summary of the 2021 increases in state minimum. It should be noted that the 2021 increases do not tell the entire story. Many states have committed to raising the minimum wage incrementally to reach a living wage. For example, in 2018 the voters of Florida passed an amendment (effective 2021) which raises the minimum wage over time to $15.00 per hour.

YOU EARNED IT, NOW LET’S GO GET IT.

Alaska
2020 minimum wage: $10.19 per hour
2021 minimum wage: $10.34 per hour

Arizona
2020 minimum wage: $12 per hour
2021 minimum wage: $12.15 per hour

Arkansas
2020 minimum wage: $10 per hour
2021 minimum wage: $11 per hour

California
2020 minimum wage: $13 per hour
2021 minimum wage: $14 per hour

Colorado
2020 minimum wage: $12 per hour
2021 minimum wage: $12.32 per hour

Florida
2020 minimum wage: $8.56 per hour
2021 minimum wage: $8.65 per hour

Illinois
2020 minimum wage: $10 per hour
2021 minimum wage: $11 per hour

Maine
2020 minimum wage: $12 per hour
2021 minimum wage: $12.15 per hour

Maryland
2020 minimum wage: $11 per hour
2021 minimum wage: $11.75 per hour

Massachusetts
2020 minimum wage: $12.75 per hour
2021 minimum wage: $13.50 per hour

Minnesota
2020 minimum wage: $10 per hour
2021 minimum wage: $10.08 per hour

Missouri
2020 minimum wage: $9.45 per hour
2021 minimum wage: $10.30 per hour

Montana
2020 minimum wage: $8.65 per hour
2021 minimum wage: $8.75 per hour

New Jersey
2020 minimum wage: $11 per hour
2021 minimum wage: $12 per hour

New Mexico
2020 minimum wage: $9 per hour
2021 minimum wage: $10.50 per hour

New York
2020 minimum wage: $11.80 per hour
2021 minimum wage: $12.50 per hour

Ohio
2020 minimum wage: $8.70 per hour
2021 minimum wage: $8.80 per hou

South Dakota
2020 minimum wage: $9.30 per hour
2021 minimum wage: $9.45 per hour

Vermont
2020 minimum wage: $10.96 per hour
2021 minimum wage: $11.75 per hour

Washington
2020 minimum wage: $13.50 per hour
2021 minimum wage: $13.69 per hour

If you have questions about how minimum wage increases in 2021 could impact you — or any other employment concerns — Shavitz Law Group is here to help. Please do not hesitate to call us for a free consultation at (800) 616-4000, or visit us at http://www.shavitzlaw.com for a no obligation review of your circumstances and consultation regarding your rights.

Gregg Shavitz, Shavitz Law Group, 951 Yamato Rd Ste 285, Boca Raton, FL and 800 3rd Ave, Suite 2800, New York, NY. Lawyers licensed in states including FL, NY, NJ, and TX. The choice of a lawyer is an important decision and should not be based on advertisements alone.

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Study: Conflict between divorced parents can lead to mental health problems in children

Study Source: Arizona State University Research and Education Advancing Children’s Health (REACH) Institute

Conflict between divorced or separated parents increases the risk of children developing physical and mental health problems.

A new study from the Arizona State University Research and Education Advancing Children’s Health (REACH) Institute has found that children experience fear of being abandoned when their divorced or separated parents engage in conflict. Worrying about being abandoned predicted future mental health problems in children. The work was published in Child Development on Jan. 12.

“Conflict is a salient stressor for kids, and the link between exposure to interparental conflict and mental health problems in children is well established across all family types — married, cohabitating, separated and divorced,” said Karey O’Hara, a research assistant professor of psychology at ASU and first author on the paper.

“Conflict between divorced or separated parents predicted children experiencing fear that they would be abandoned by one or both parents. This feeling was associated with future mental health problems, especially for those who had strong relationships with their fathers.”

Based on studies including children from families with married or cohabitating parents, the researchers knew that children view interparental conflict as a threat, often wondering if their parents will get divorced.

To understand how children with divorced or separated parents interpreted interparental conflict, the researchers surveyed families participating in the New Beginnings Program, asking 559 children (aged 9–18 years) about their exposure to conflict. The questions included topics like whether their parents fought in front of them, spoke poorly of the other parent or asked children to carry messages. Children exposed to interparental conflict were more likely to report worrying about being abandoned by one or both of their parents.

“When parents who are married or cohabitating engage in conflict, the child might worry about their parents separating,” O’Hara said. “But children whose parents are divorced or separated have already seen the dissolution of their family. The idea that they might be abandoned might be unlikely, but it is not illogical from their perspective.”

The fear of abandonment was persistent: Exposure to parental conflict predicted fear of abandonment three months later. And, worrying about abandonment predicted mental health problems, as reported by the children themselves and their teachers, 10 months later.

Because quality parent-child relationships are known to buffer children against stress, the researchers expected children who had strong relationships with a parent to experience less fear of abandonment and mental health problems. But the team did not find a general buffering effect of parenting.

“A strong father-child relationship came at a cost when interparental conflict was high,” O’Hara said. “Having a high quality parenting relationship is protective, but it is possible that quality parenting alone is not enough in the context of high levels of interparental conflict between divorced parents.”

The goal of ASU’s REACH institute is to bring research promoting children’s well-being from the lab into practice, and the research team is currently working on designing an intervention to help children cope with parental conflict after divorce.

Shavitz Law Group – Are you getting paid when you work through your meal breaks?

Blog Source: Shavitz Law Group

No matter which industry employees work in, taking a complete and uninterrupted meal break is nearly impossible. This is exacerbated in our modern world where it seems like everyone is constantly on call and connected. Co-workers email and text each other nearly all day. Employees may stop to take a meal break but then get interrupted by a co-worker who needs help addressing a work issue or customer matter. But, that employee never completes their meal break. Employees often take unpaid meal breaks and do not get paid when they work during those breaks.

Did you know that employers must pay employees for meal breaks that are interrupted for work? Employees must be completely relieved from duty for the purposes of eating their meals. If you work during a meal break, your employer must pay you for that time.

If you are made to work during any part of your unpaid meal break – including communicating with co-workers about work matters – or if you have any other issues with not being paid for all time you work, we are here to help. Please contact the Shavitz Law Group at (561) 447-8888 or visit us at http://www.shavitzlaw.com for a free, no obligation review of your circumstances and consultation regarding your rights.

YOU EARNED IT, NOW LET’S GO GET IT.

Gregg Shavitz, Shavitz Law Group, 951 Yamato Rd Ste 285, Boca Raton, FL and 800 3rd Ave, Suite 2800, New York, NY. Lawyers licensed in states including FL, NY, NJ, and TX. The choice of a lawyer is an important decision and should not be based on advertisements alone.

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Shavitz Law Group – Employers could pay penalties for not paying Overtime

Blog Source: Shavitz Law Group

Under the Fair Labor Standards Act (FLSA), employers are required to pay all overtime-eligible (non-exempt) employees overtime at a rate of one-and-a-half times employees’ regular rate of pay for all overtime hours worked (absent limited exceptions). Frequently, employers fail to do so in a myriad of ways: by making employees work off-the-clock, by interrupting their meal periods, by improperly rounding their time punches or by manually adjusting their time entries. While doing this may result in employers saving a little money in the short term by cheating employees out of their rightfully earned wages, this practice can ultimately become costly.

The reason failing to pay overtime wages can become so costly is because the FLSA provides for “liquidated damages.” Liquidated damages are equal to the amount of back overtime wages owed. An employer can only avoid paying liquidated damages if it can prove that its failure to pay overtime wages was made in “good faith.” Because this is a difficult burden to meet, if an employer is found to have wrongfully deprived its employees of overtime pay, it may be responsible for double back pay to the employee. The double damages policy is designed to be severe by nature in order to hopefully discourage employers from breaking the law when it comes to overtime wages.

If you believe that you were wrongfully denied overtime pay, do not hesitate to contact us at info@shavitzlaw.com or at (800) 616-4000 for a free evaluation of your claim.

YOU EARNED IT, NOW LETS GO GET IT.

Gregg Shavitz, Shavitz Law Group, 951 Yamato Rd Ste 285, Boca Raton, FL and 800 3rd Ave, Suite 2800, New York, NY. Lawyers licensed in states including FL, NY, NJ, and TX. The choice of a lawyer is an important decision and should not be based on advertisements alone.

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Shavitz Law Group – What’s Up with WFH and Overtime?

Blog Source: Shavitz Law Group

Nine months into the COVID-19 pandemic, “working from home” or “WFH” is part of our everyday language. The virus seemed to come out of nowhere and forced many employers to rush into remote working arrangements. Because of this, many did not have time to prepare or to consider the legal ramifications of WFH.

With the transition to a remote workforce, the traditional 9-5 workday seems to have morphed into a 24-7 working arrangement. Personal and work life has blurred as the phone, computer and other devices constantly ping workers at all hours, with many employers expecting instantaneous responses. Remote employees, most of whom are just grateful to still be employed during the recession, often feel compelled to be available to their employers around the clock. Not surprisingly then, remote employees often report working longer hours than ever before as work blends into home life. Even more often, these employees are not paid for all hours worked, as their employers either (1) fail to properly track their time, (2) believe that the ”luxury” of working from home allows them to contact their employees at any time, but not pay for that time, or (3) simply do not understand that responding to an employer’s communications – whether via email, text, video chat, IM, or any other electronic communication platform – constitutes “work” within the meaning of the law.

To ensure they are paid all time worked, employees should record all hours on the employer’s timekeeping system. If the employer does not have a timekeeping system, or if the system does not permit an employee to enter time outside of regularly scheduled hours, the employee should then keep a record of all time worked outside of regularly scheduled hours and report that time to their employer at the end of the work week.

If your employer is refusing to pay you for all time worked – including time spent responding to communications outside of your regular shift or after normal business hours – or for any other questions regarding pay or overtime, don’t hesitate to contact Shavitz Law Group at (561) 447-8888 or visit us at http://www.shavitzlaw.com for a free, no obligation review of your circumstances and consultation regarding your rights.

YOU EARNED IT, NOW LETS GO GET IT.

Gregg Shavitz, Shavitz Law Group, 951 Yamato Rd Ste 285, Boca Raton, FL and 800 3rd Ave, Suite 2800, New York, NY. Lawyers licensed in states including FL, NY, NJ, and TX. The choice of a lawyer is an important decision and should not be based on advertisements alone.

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Shavitz Law Group – Looking Forward to Potential Employment Law Changes in 2021

Blog Source: Shavitz Law Group

2020: it’s been a very tough year. Our country is still suffering from the COVID-19 pandemic. Unemployment levels are high and people cannot return to work “as normal” given the challenges of the virus spread and containing it.

There’s reason to be optimistic for the future, though. Recently, multiple companies announced vaccines that appear to be very successful in controlling the virus. If these vaccines prove successful, we can look forward to getting the coronavirus under control next year and returning to life as it was pre-pandemic.

What does that mean for employment law? With the new administration entering the White House, you can anticipate that many new employee-friendly laws will be proposed. Some potential laws that we predict are:

● Mandates for businesses to provide personal protective equipment to employees to keep them safe going forward;
● Protections for workers who are working from home to ensure that they are being paid for all time worked and companies are accurately tracking their hours worked;
● Preventing companies from forcing workers to give up their rights to bring cases in court through one-sided arbitration agreements;
● Laws eliminating the gender pay disparity between men and women; and,
● Laws creating universal paid sick days and 12 weeks of paid family and medical leave.

We also anticipate a large-scale investment program to bolster small businesses that suffered during the pandemic. This investment will allow small businesses to get back on their feet and grow the local economy, which, in turn, will lead to increased employment and a stronger economy.
This year has brought enormous heartache and pain to countless Americans. Yet, the future remains bright. Together, we will overcome this virus, stronger and more resilient than ever.

If you have questions about whether your employer is violating the new federal requirements, or if you have any other employment concerns, please do not hesitate to call the Shavitz Law Group for a free consultation at (800) 616-4000.

YOU EARNED IT, NOW LETS GO GET IT.
Gregg Shavitz, Shavitz Law Group, 951 Yamato Rd Ste 285, Boca Raton, FL and 800 3rd Ave, Suite 2800, New York, NY. Lawyers licensed in states including FL, NY, NJ, and TX. The choice of a lawyer is an important decision and should not be based on advertisements alone.
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