A New York federal district court has become the second court to hold that the Dodd-Frank anti-retaliation provision, 15 U.S.C. § 78u-6(h)(1)(a), which prohibits retaliation against a whistleblower who makes disclosures required or protected by the Sarbanes-Oxley Act, among other laws, does not apply extraterritorially. In Meng-Lin Liu v. Siemens A.G. (pdf), a judge of the Southern District of New York, consistent with a decision earlier this year by a Texas district court, held that a Taiwanese compliance officer working for a Chinese subsidiary of a ...
Our colleagues Kara Maciel and Jordan Schwartz, both of Epstein Becker Green, recently cowrote an article for PLC titled "Tipped Employees Under the FLSA."
Following is an excerpt:
Wage and hour lawsuits certainly are not new phenomena, but in recent years, service industry employees have increasingly made claims regarding tips and service charges. In particular, employers in states such as Massachusetts, New York and California have seen a surge in class actions involving compulsory tip pools and distributions of service charges to employees. Commonly targeted employers ...
By: Kara M. Maciel
The following is a selection from the Firm's October Take 5 Views You Can Use which discusses recent developments in wage hour law affecting the hospitality industry.
IRS Will Begin Taxing a Restaurant’s Automatic Gratuities as Service Charges
Many restaurants include automatic gratuities on the checks of guests with large parties to ensure that servers get fair tips. This method allows the restaurant to calculate an amount into the total bill, but it takes away a customer’s discretion in choosing whether and/or how much to tip the server. As a result of this ...
Our colleague Kara M. Maciel of Epstein Becker Green wrote a wage and hour update in this month’s Take 5 labor and employment newsletter.
Here’s a preview of the five items:
1. IRS Will Begin Taxing a Restaurant's Automatic Gratuities as Service Charges
2. The New DOL Secretary, Tom Perez, Spells Out the WHD's Enforcement Agenda
3. DOL Investigates Health Care Provider and Obtains $4 Million Settlement for Overtime Payments
4. Federal Court Strikes Down DOL Tip Pooling Rule
5. Take Preventative Steps When Facing WHD Audits
Read the full article here.
Our colleague Kara M. Maciel of Epstein Becker Green wrote a wage and hour update in this month’s Take 5 labor and employment newsletter.
Here’s a preview of the five items:
1. IRS Will Begin Taxing a Restaurant's Automatic Gratuities as Service Charges
2. The New DOL Secretary, Tom Perez, Spells Out the WHD's Enforcement Agenda
3. DOL Investigates Health Care Provider and Obtains $4 Million Settlement for Overtime Payments
4. Federal Court Strikes Down DOL Tip Pooling Rule
5. Take Preventative Steps When Facing WHD Audits
Read the full article here.
By: Robert S. Groban, Jr. and Matthew S. Groban
The recent decision by the Chief Administrative Hearing Officer (“OCAHO”) in United States v. The Red Coach Rest., Inc., 10 OCAHO No. 1200 (2013) provides a roadmap for employers seeking to reduce fines sought by Immigration and Customs Enforcement (“ICE”) for Form I-9 violations. In Red Coach, the ICE complaint alleged that Red Coach: (1) failed to prepare Form I-9’s for nine employees within 3 days of their hire, and/or failed to present the forms to ICE upon request; and (2) failed to ensure proper completion of Form I-9’s ...
Our colleagues have issued a new client advisory: “New York State Department of Labor Adopts Wage Deduction Regulations,” by William J. Milani, Dean L. Silverberg, Jeffrey M. Landes, Susan Gross Sholinsky, Anna A. Cohen, and Jennifer A. Goldman.
Following is an excerpt:
The New York State Department of Labor (“DOL”) has adopted wage deduction regulations (“Final Regulations”) pertaining to the expanded categories of permissible wage deductions in the New York Labor Law, effective October 9, 2013. As we previously reported (see the Act Now Advisory entitled “New ...
Section 953(b) of the Dodd-Frank Wall Street Reform and Consumer Protection Act ("Dodd-Frank") requires certain public companies to disclose how the compensation of the company's chief executive officer ("CEO") compares to the compensation of employees generally. The disclosure must include (i) the CEO's annual total compensation, (ii) the median of the annual total compensation of all employees other than the CEO, and (iii) the ratio of (i) over (ii).
Like many of Dodd-Frank's requirements, disclosure of the CEO pay ratio was not required until implementing regulations were ...
I was recently asked an interesting question by an industry contact:
"Employers often are told to know and exercise their rights during an OSHA inspection. What exactly are employers' rights during an OSHA inspection?"
While it may not feel like it during an inspection, employers have many rights before, during, and after OSHA inspections.
Before an inspection even begins, employers have a right under the Fourth Amendment to the U.S. Constitution to be free in their workplaces, just as they are in their homes, from unreasonable searches and seizures, which includes inspections by OSHA. What that means is, OSHA may not inspect a workplace unless the Agency has administrative probable cause (a lower burden than criminal probable cause) to believe that a violative condition exists within. Accordingly, employers have a right to demand an inspection warrant that establishes OSHA’s probable cause to inspect. We rarely advise clients to demand an inspection warrant; rather we try to negotiate with the Agency over a reasonable scope of the inspection, and with such an agreement, waive the warrant right and consent to the inspection.
Another right employers should consider asserting with regard to OSHA inspections is the right to exclude non-employee third parties (such as a union representative at a non-union workplace) from participating in the inspection process. OSHA recently issued a formal Interpretation Letter of the regulation covering who may participate in OSHA walk-around inspection (29 C.F.R. 1903.8(c) - Representatives of Employers and Employees). Specifically, OSHA expressed its belief that employees at a non-union worksite may authorize a third party affiliated with a union or community organization to act as the employees’ representative during an inspection. Notwithstanding OSHA's interpretation letter, the plain language of the standard makes it clear that such involvement by a third party union representative is not permitted under the law, and employers may exercise their rights to exclude third parties from the inspection by demanding and challenging a warrant under those circumstances. If confronted with such a situation, employers should consult with legal counsel before allowing any non-employee third party to participate. One approach would be to demand and challenge an inspection warrant. If the non-employee is permitted on the premises, employers should be explicit about who bears responsibility for any injury to that person, who is responsible for any PPE, determine whether that person is trained on any hazards that may be present or has any necessary security clearances for sensitive activities that may be in view, and how to protect any proprietary processes from being revealed. Here is an article we wrote on this issue when the interpretation letter was released.
Also before inspections begin, employers have the right to an opening conference. In my opinion, this is the most important stage of the inspection because it is the time when employers can:
- Negotiate to narrow the scope of the inspection;
- Can ask questions about the purpose of and probable cause justifying the inspection; and
- Try to establish ground rules with OSHA about how the inspection may proceed, from the collection of documents (through written requests only), to interviews (scheduled in advance), and physical access to the facility (only with a management escort).
If the inspection was initiated by an employee or former employee complaint, employers also have a right to access a copy of the complaint before consenting to the inspection.
Once an OSHA inspection begins, employers also have many rights, including a right to accompany the compliance officer at all times during the walkaround, and to take side-by-side photographs or other physical evidence that OSHA takes during the inspection. Another important right relates to management interviews. Interview statements by management representatives bind the company, and since the OSH Act gives employers the right to be present when binding statements are taken, employers therefore have a right to be present and participate in interviews of management witnesses, regardless of whether the management witness wants the representative there.
By: Robert S. Groban, Jr. and Matthew S. Groban
On June 28, 2013, a District of Columbia restaurant sued its former executive chef to recover the expenses incurred to secure his H-1B visa. See Rasika West End LLC v. Tyagi, No. 13-0004426 (D.C. Super. Ct. filedJune 28, 2013). According to the complaint, the employer entered into a thirty-six (36) month contract with the H-1B employee, and claimed that it would take that long to recover, among other things, funds spent to secure the approved H-1B petition the employee needed to assume the position. The complaint further alleges ...
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