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Restaurants and Bars: Beware of Tipped Employee Pay Issues

A recent news release in Amarillo, Texas, illustrates what can happen if employers do not carefully monitor and observe DOL regulations on how they are paying tipped employees.

The Big Texan Finds Itself In A Wage And Hour Investigation

The Big Texan Steak Ranch in Amarillo, which has a national reputation, has agreed to pay $650,000 in minimum wage back wages and $150,000 in liquidated damages to 279 current and former wait staff following an investigation by the U.S. Department of Labor's Wage and Hour Division. The DOL found violations of the Fair Labor Standards Act's minimum wage and record-keeping provisions arising from a tip pooling arrangement by the restaurant.

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Can I Seriously Not Fire an Employee Who Cussed Me Out and Trashed Me?

NLRB Says Conduct Was Protected Activity

The Background of the Case

This is how the story goes: An employee complained about pay practices at the business where he worked. The employer, owner of the business, took the employee into his office and told him that he had to follow the employer’s policies and procedures, and that he should not be complaining about his pay. The employer told the employee, “that if he did not trust the him, he need not work there.” The employee then became irate and started yelling at the employer, called him a “fucking mother fucking,” a “fucking crook,” and an “asshole,”, that he was stupid, nobody liked him, and everyone talked about him behind his back. During this tirade, the employee also pushed his chair aside and told the owner that if he fired him he’d regret it. The owner obliged & fired him. 

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Is Allowing Employee to Telecommute a Reasonable Accommodation Under the ADA?

A recent federal appeals court decision seems to say “Yes” under the facts in that case.  This was found to be true even though the employer claimed working as part of a team was an important part of the job.  The 6th Circuit U. S. Court of Appeals in EEOC v. Ford Motor Co., No. 12-2484 (April 22, 2014), found an employee suffering from irritable bowel syndrome (IBS), who was deemed disabled under the ADA, was entitled to consideration of whether a “reasonable accommodation” to allow her to perform her job was telecommuting.  She had been terminated after poor performance ratings, which arose from excessive absences due to her disability.  The trial court had granted the employer, Ford Motor Co., a summary judgment that she was rightfully terminated and that telecommuting was not a reasonable accommodation.

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Scary Big Dollar Wage and Hour Cases Continue to Fill the News

Scary wage and hours cases continue to fill the news headlines with big settlements or potential damages against employers who do not pay correctly under the Fair Labor Standards Act (“FLSA”).

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Supreme Court Greatly Broadens Employee Whistleblower Protections

The United States Supreme Court (“USSC”) in Lawson v. FMR LLC, 572 U.S. No. 12-3 (Mar 4, 2014), held that the Sarbanes-Oxley Act (SOX's) whistleblower protection extends not just to employees of publicly-traded companies. The Court held SOX also protects employees of “private” (non-public) company contractors and subcontractors that do work for publicly-traded companies.  This was the USSC’s first time to decide a case under the anti-relation section (806) of SOX and it broadly expanded the protection.
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“Employment At-Will” Clause Can Get You in Trouble

What Could Be Wrong With Confirming "Employment At-Will" Status? 

Most employers are advised by counsel to include language in employee manuals and agreements confirming that employment status is “employment at-will”. Some go on to provide that this status cannot be changed except under very specific conditions.  Could these provisions violate the National Labor Relations Act (“NLRA”)?

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Houston Appeals Court Finds That Failure to Include Buy-Out Clause in a Physician Non-Compete Makes It Unenforceable

A  physician non-compete covenant is not enforceable if?
Physician non-compete agreements are a whole different animal. A medical or physician non-compete adds many additional requirements over those for general employee non-competes in Texas. The requirements are very specific. Employers must include a buy-out provision in a physician non-compete, even if negotiating the terms is contentious. 
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Overtime Pay to be New Normal for Home Health Care Workers

Are The Pay Rules For Home Health Care Workers Changing?

Overtime pay and minimum wage rules will become the rule rather than the exception for home health care workers in the future. The Department of Labor (DOL) recently published its “final rule”, which would do away with the exemption from minimum wage and overtime pay for home health care employees in all but a very narrow range of pure “companionship” services.  The changes will be significant for home health care employers.  Fortunately, the new rule does not go into effect until January 1, 2015, so home health care employers will have time to adjust their staffing and pay practices. 

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Time to Update Employee Handbook

Why Have An Employee Handbook?

I have covered in an earlier blog why an employer of any size should have an employee handbook.  First, it helps employees know what is expected of them and provides the rules on which disciplinary action can be based. Second, the handbook can provide useful protection and defenses against employee actions.  Please refer to this earlier blog for more discussion.

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Will Obesity be Considered a Disability Under the ADA?

There’s a new issue for employers to struggle with now. Early this summer the American Medical Association (AMA) officially determined that obesity is a disease. That leads to the inevitable next question for employers subject to the Americans with Disabilities Act (ADA) (those with 15 or more employees): Is obesity a disability, considering all of the ramifications that flow from that possibility? Then all shades of other questions pop up, such as “how overweight must a person be to qualify  as ‘obese’”; “how does an employer determine whether an employee is obese enough to require accommodations in job performance”; and “what accommodations might be required to allow him or her to perform the essential functions of the job?”     

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