By Abigail Cahak and Noah Finkel

Seyfarth Synopsis: Even though the DOL abandoned its 20% tip credit rule in November 2018, one federal district judge has refused to defer to the agency, opting to defer to the old guidance instead.

As employers using the tip credit know full well, an individual employed in dual occupations–one tipped and one not–cannot be paid using the tip credit for hours worked in the non-tipped occupation. FLSA regulations clarify, however, that duties related to a tipped occupation, but not themselves directed toward producing tips, are not considered a separate occupation.  For example, a waitress may nonetheless spend part of her time “cleaning and setting tables, toasting bread, making coffee[,] and occasionally washing dishes or glasses” without being employed in “dual occupations.”  Although the regulations impose no limitation on the amount or type of “related duties,” an internal DOL Field Operations Handbook (“FOH”) — a document meant originally for investigators but later made available on the DOL’s website — required that employees may not spend more than 20% of hours in a workweek performing duties related to the tipped occupation but not themselves tip-generating.

This “20% rule” was followed by the Eighth and Ninth Circuit Court of Appeals, and several lower courts (but not by the Eleventh Circuit and some district courts), under the reasoning that the DOL’s interpretation of its own regulations was reasonable and thus entitled to deference.  Tracking servers, and bartenders’ time on various tasks has proven impracticable for hospitality employers and has led to a wave of collective actions that often have been expensive to settle.  Mercifully, the DOL laid the 20% rule to rest by issuing an opinion letter last fall stating its position that “no limit is placed on the amount of [related but non-tipped] duties that may be performed . . . as long as they are performed contemporaneously with the duties involving direct service or for a reasonable time immediately before or after performing such direct-service duties” (emphasis added).  That opinion letter also noted that a revised FOH would be forthcoming.

The 20% rule was not enacted by Congress.  Nor was it imposed by judges.  It did not undergo notice-and-comment rulemaking to become a legislative regulation.  It was not even an interpretive bulletin placed by the DOL into the Code of Federal Regulations.  Rather, the 20% appeared in a handbook given to DOL investigators, and then was urged by the DOL onto courts for the first time in an amicus brief.  Deemed as a reasonable interpretation of the DOL’s own regulations by many courts, the 20% is thus purely a creature of deference.  And if the 20% rule can live only by deference, it stands to reason that it dies by deference too.

But earlier this month, a federal district judge attempted to resurrect DOL tip credit guidance that even the Department had left for dead.  The ruling takes a results-oriented approach and dismisses more recent, well-reasoned guidance to the contrary.

The case brought by current and former servers and bartenders of a group of restaurants, alleged that they were owed unpaid wages due to improper use of the tip credit, including spending more than 20% of their time on non-tip producing work.  In ruling on the employer’s motion for decertification, the court concluded that the DOL did not offer any reasoning or evidence of thorough consideration for “reversing course” with the opinion letter, yet the decision neglected to fully consider that the same opinion letter had previously been handed down in the final days of the Bush Administration, only to be withdrawn in the first months of President Obama’s first term.  The ruling also failed to consider that the 20% rule itself has never been fully explained by the DOL, nor has the Department clearly articulated why 20% is an appropriate number, how duties should be categorized, or how time should be tracked.  In contrast, the November 8 opinion letter provides a detailed explanation for the basis of the rule it articulates and a methodology for ensuring compliance.  The decision is also premised on facts likely distinguishable from future cases.  The court found it significant that the 20% rule was in effect during the three years at issue, such that application of the DOL’s new guidance would be an “unfair surprise” to the plaintiffs.

The decision is one of the first to rule on deference to the DOL’s new opinion letter, but it may be short-lived due to appeal or due to other courts distinguishing or refusing to follow it.  In an attempt to ensure that plaintiffs who had been litigating for years did not have the rug pulled out from underneath them, the court did not fully address the thoroughness or reasoning of the two divergent interpretations.  The decision may very well end up an outlier, particularly as previously-filed tip credit litigation dries up, sending the 20% rule to its grave once and for all.

By: Ariel Fenster, Ryan McCoy, Steve Shardonofsky

Seyfarth Synopsis: Arbitration of employment claims continues to be a hot topic at the Supreme Court.  In a unanimous 8-0 decision yesterday (Justice Kavanaugh recused), the Supreme Court ruled in New Prime Inc. v. Oliveira that non-employee drivers engaged by a transportation company cannot be forced to arbitrate their wage-hour claims under the Federal Arbitration Act’s (“FAA”) exclusion for transportation workers engaged in foreign or interstate commerce because that exclusion covers independent contractors as well as employees.

The ruling marks a departure from the Court’s long-held stance favoring arbitration.  Most notably, it may result in non-enforcement of arbitration agreements for hundreds of thousands of workers in the transportation industry, and it may also put in jeopardy any corresponding class/collective action waiver provisions.  In the wake of this ruling, transportation companies should review and consider making changes to their arbitration agreements to ensure they remain enforceable (perhaps under state arbitration laws or as a function of severability clauses) despite the broad exclusion under the FAA.

Case Background and the Court’s Prior Interpretation of the FAA’s Section 1 Exception

Over the years, the Supreme Court has liberally interpreted and applied the FAA in favor of arbitration, consistently enforcing mandatory arbitration provisions at almost every opportunity. Just last week, Justice Kavanaugh wrote his first opinion for an unanimous Court in Henry Schein Inc. v. Archer & White Sales Inc., holding that courts must compel arbitration of gateway arbitrability questions whenever the agreement includes “clear and unmistakable evidence” that the parties delegated the determination of those questions to the arbitrator.

Despite the Court’s broad application of the FAA, the Act does contain several sweeping exceptions to coverage.  Section 1 of the FAA excludes “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce,” (emphasis added).  In its 2001 Circuit City Stores, Inc. v. Adams decision, the Court held that this provision does not apply to employment contracts of all employees, but is limited only to the employment contracts of transportation workers actually engaged in interstate commerce.  Since Circuit City, a majority of courts have further limited the exception, ruling that it applies only to employees and does not preclude arbitration of claims by independent contractors in the transportation industry.  This case gave the Court an opportunity to decide whether the FAA’s “contracts of employment” exemption also applies to independent contractor agreements.

Dominic Oliveira worked for New Prime Inc. as a truck driver, but never as a traditional employee.  Instead, Oliveira signed an operating agreement classifying him as an independent contractor.   Oliveira filed suit claiming he was paid significantly less than the minimum wage rate required for traditional employees.  His operating agreement with New Prime contained several common arbitration-related provisions that loyal readers of this blog know are generally enforceable: first, the contract required that all disputes must be resolved through individual arbitration and second, the agreement provided that any threshold questions regarding the arbitrability of Oliveira’s claims should be decided by an arbitrator, and not the court. The second provision is typically known as a “delegation” clause.

Despite the mandatory arbitration provision, Oliveira filed a class-action lawsuit on behalf tens of thousands of other “contractors” who signed similar operating agreements with New Prime.  In the lawsuit, Oliveira alleged that New Prime had misclassified him and other drivers as independent contractors to avoid paying them the federal minimum wage and other protections afforded to employees (but not contractors).

Two Questions Before the Supreme Court: 

Who Should Decide Whether the Section 1 Exclusion Applies?

First, the Court was tasked with deciding who should rule on the applicability of the Section 1 exception—a court or the arbitrator?  New Prime sought to enforce the terms of the agreement requiring the arbitrator to decide all issues regarding arbitrability, while Oliveira insisted that the court must first decide whether or not the FAA given the Section 1 coverage exclusion.  Both the District Court and the First Circuit Court of Appeals sided with Oliveira on this question.

In affirming the First Circuit’s decision, the Supreme Court explained that a district court must make an “antecedent determination” of whether the Section 1 exemption applies to a contract before compelling arbitration.  And because the question of whether the contract triggers the FAA’s coverage is within the court’s jurisdiction, the Court held that the question was non-delegable.

Does “Contracts of Employment” Also Mean Independent Contractors?

Next, the Court was tasked with determining if the FAA’s exemption for “contracts of employment” includes only traditional (read: W-2) employees or whether it also applies to independent contractors.  For a unanimous Court,  Justice Gorsuch wrote that while today there may be a formal distinction between “employment” and contract work, that was not true when Congress passed the FAA in 1925.  Back then, “[d]ictionaries tended to treat ‘employment’ more or less as a synonym for ‘work’” and “all work was treated as employment,” whether or not “formal employer-employee or master-servant relationship” existed.  To establish this historical context, Justice Gorsuch pointed to six dictionaries from the era in addition to contemporaneous statutes and rulings. Given this framework, Justice Gorsuch concluded that “[a]t that time, a ‘contract of employment’ usually meant nothing more than an agreement to perform work” and, “[a]s a result, most people then would have understood Section 1 to exclude not only agreements between employers and employees but also agreements that require independent contractors to perform work.”  Justice Gorsuch also pointed out that Congress’ use of the term “workers” in Section 1 and not “employees” or “servants” suggested that it was meant to be interpreted broadly. Because Oliveira’s independent contractor agreement falls under the FAA’s exclusion for “contracts of employment” in the transportation industry, New Prime cannot compel arbitration of Oliveira’s claims and must instead now defend itself in court.

Where Does the Road Lead From Here?

Based on the Court’s decision in New Prime, independent contractors engaged in foreign or interstate commerce in the transportation industry now fall squarely within the FAA’s Section 1 coverage exclusion.  This could result a significant spike of class- and collective-action wage and hour lawsuits.  In light of this case, transportation and logistics’ companies should revisit and consider updating their mandatory arbitration agreements with any independent contractors, as they may now be held unenforceable under the FAA.

Options for revising your arbitration agreements in light of New Prime may include:

  • Ensuring the arbitration agreements contains a broad and valid severability clause. This may ensure that any class/collective action waiver provisions remain enforceable even if the claims must be litigated in court.  It may also ensure that arbitration can take place under applicable state arbitration laws as opposed to the FAA.
  • Revising arbitration agreements to provide for enforcement of under applicable state law, assuming the state law does not contain a similar transportation worker exception. Several states have adopted arbitration acts similar to the FAA, and many of those arbitration acts do not contain an exclusion for transportation workers. It may be that, as to a transportation worker, a company can enforce an arbitration agreement with a class waiver under state law (whether under an arbitration act or even traditional contract law), even if it cannot under federal law.

By Christopher M. Cascino

Seyfarth Synopsis: The DOL issued an opinion letter approving a pay model where an employer in the home health field paid its employees at an hourly rate for time spent with patients without additional hourly pay for time spent by the employees traveling to and from patient homes.  In that same letter, the DOL provided guidance on how that employer should calculate its employees’ overtime rates.  The DOL opinion letter provides employers who pay non-exempt employees using certain methods other than the traditional straight hourly rate across all hours worked method reassurance that their pay model complies with the FLSA, and provides them with guidance about how to calculate overtime rates for such employees.

While many employers pay their employees at a single hourly rate for all hours worked, in some industries, other pay models make more sense.  For instance, some employers in the home health field pay their workers based on the services they provided to patients with the intention of having that pay compensate their employees for all their work time, including time spent traveling to and from patient homes.

One such employer from the home health field asked the DOL whether its pay model complied with the FLSA.  That employer paid its employees at an hourly rate for time spent in patient homes.  It did not provide its employees additional pay for time spent traveling to and from patient homes.  But because such travel time is work time under the FLSA, the employer took hourly earnings divided by total time worked, both in patient homes and in transit to patient homes, to ensure that it paid each of its employees at least the minimum wage for all of those hours.  The DOL found that this complied with the FLSA’s minimum wage requirements.

To calculate overtime, the employer assumed that its employees earned an average of $10 per hour when their pay was divided by all hours worked and paid their employees time and a half based on that rate.  The DOL found that, in assuming it paid all of its employees at a $10 per hour regular rate, the employer could have violated the FLSA’s overtime provision if any employees earned more than $10 per hour.  Instead, the employer should have divided each employee’s base pay by the total number of hours worked, including travel time, to calculate the regular rate.

While addressing one particular pay model, the DOL’s opinion letter provides useful guidance for employers who use other pay models, such as commission or piece rate pay models without base hourly pay, on how to calculate overtime rates as well as reassurance that such pay models comply with the FLSA.

John Ayers-Mann and Kerry Friedrichs

Seyfarth Synopsis: In a recent decision, the Third Circuit Court of Appeals rebuked a Pennsylvania district court’s skeletal analysis of plaintiffs’ class action claims. Particularly, the court took issue with the district court’s failure to define the classes with sufficient specificity and failure to undertake a rigorous analysis of Rule 23’s predominance and commonality requirements.

In a recent decision, the Third Circuit strongly affirmed the rigorous analysis that courts must apply when determining whether wage-hour claims should be certified.

In Reinig v. RBS Citizens, N.A., the Third Circuit Court of Appeals reviewed a Pennsylvania district court’s order certifying classes of Mortgage Loan Officers (“MLOs”) in a wage-hour lawsuit against their employer, Citizens Bank. The MLOs argued that, although Citizens maintained a policy which allowed employees to work overtime with pre-approval, Citizens perpetuated a firm-wide “policy to violate the policy” by encouraging MLOs to work overtime hours off the clock.  Certifying numerous subclasses under state laws, the district court found that the plaintiffs had introduced sufficient evidence to support certification.  Citizens took an interlocutory appeal, contending that the certified classes were insufficiently definite and that the plaintiffs had failed to meet the commonality and predominance elements of Rule 23.

The Third Circuit first examined the lower court’s determination that plaintiffs had provided a sufficiently discernible class. The court found that the lower court’s  certification order, which granted the state law subclasses in a conclusory fashion, failed to provide any analysis of the scope of plaintiffs’ class definition. The Third Circuit found that this lack of specificity required it to “comb through and cross-reference” multiple documents in an effort to “cobble together the parameters defining the class and a complete list of the claims, issues and defenses to be treated on a class basis.”  Accordingly, the court found these definitions inadequate and remanded the issue of the class definitions back to the district court.

The court next examined the district court’s treatment of Rule 23’s commonality and predominance requirements, and found that the district court relied on insufficient evidence to support its finding that these requirements were met. Specifically, the Third Circuit took issue with the district court’s reliance upon the report of a special master overseeing the case, as this report merely summarily referred to testimony of two dozen MLOs that supported plaintiffs’ theory of a uniform “policy to violate the policy ” without actually identifying the testimony that supported this theory.   The Third Circuit further noted the fact that the district court undertook no analysis of whether Citizens had actual or constructive knowledge of the alleged policy, and provided no explanation as to how it reconciled its conclusion with testimony from some  plaintiffs that they were not required to work overtime off the clock. Expressing serious doubt as to whether the plaintiffs’ proffered evidence could meet the commonality and predominance requirements of Rule 23, the court remanded the issue and implored the district court to more rigorously examine the record and reconsider its ruling.

The Third Circuit’s decision in Reinig safeguards two critical protections for employers facing class action claims. First, it affirms that plaintiffs and courts must define class claims with a level of specificity that permits employers to gauge the scope of class action liability. Second, the decision affirms the rigorous analysis district courts must undertake when evaluating commonality and predominance under Rule 23 — requirements that often are the strongest lines of defense for employers against far-reaching class definitions and claims.

 

 

 

 

 

It’s the week before Christmas, and in our practice group meeting,

We look back and consider the year that’s completing.

The wage-hour nuggets that earn all our favor,

Wond’ring “Is this the last time I’ll be rhyming ‘class waiver’?”

 

Because the Supreme Court weighed in and said it is OK.

In exchange for employment, you can give class away.

Justice Gorsuch’s words left employers’ hearts smitten:

“[A]rbitration agreements . . . must be enforced as written.”

 

And for those who may read the decision and grouse,

SCOTUS says, don’t blame us, ask the Senate or House.

About the only bad thing in the case is the name,

And the infinite puns that were Epically lame.

 

Amazingly, the Supremes were not done with wages,

As they addressed a construction that’s lingered for ages.

When determining whether overtime has accrued,

How should FLSA exemptions have to be construed?

 

For decades, the knee-jerk response has been “narrow,”

But the Court made no bones, it went straight for the marrow:

“The flawed premise [of a] remedial purpose ‘at all costs,’”

Meant that narrow construction to the side had been tossed.

 

With dozens of exemptions (in § 213, mainly),

A new command to the courts:  construe those things plainly.

Look how they’re written, with no bias impeding,

Because every exemption deserves a fair reading.

 

From the Judicial Branch, we jump to Article II

And the Wage Hour Division’s annual review.

A year that’s been filled with some policy flips

In the combat zone that lies between wages and tips.

 

A regulatory proposal that encouraged more sharing

With back of house workers, but was viewed as uncaring.

Was withdrawn when a law was passed in its stead

Turning old DOL guidance on top of its head.

 

And “what’s a tipped occupation?”; they got sued on that

So they reissued a letter and resolved the spat.

Now if there are questions of when tips are proper,

You can just check the work in the O*Net task hopper.

 

More opinions were issued, but will more courts be swayed?

More employees got wages through investigations and PAID.

But if the overtime reg is what makes your eyes glisten,

They can’t get it done, but, man, can they listen.

 

From D.C. we head out to the West Coast

For the head-shaking section of this annual roast.

Your flat-rate bonus calculations, just tear them to shreds;

California proclaimed “We are not like the feds.”

 

The federal regular rate is mathematical fact.

Divide the bonus by hours, the answer, exact.

But a single pay system, California’s impaired;

Their divisor is 40; and next year, it’s pi squared.

 

Some workers on gigs (and probably some in ceramics)

Learned that they’d become employees because of Dynamex.

The single conclusion from that ABC test?

It looks like they no longer want contractors out West.

 

But one big decision gave employers there hope.

Criminalized arbitration?  Gov. Brown, he said “Nope.”

Now back to those places where “pro-employer” ain’t fiction

And courts do not stretch to find their jurisdiction.

 

Where fluctuating workweeks exist, and interns do, too.

Where arbitration precedes certification in queue.

To all our blog readers across the whole nation:

Happy New Year to you!!! (and think about arbitration).

By: Patrick Bannon and Michael Steinberg

Seyfarth Synopsis: Two recent decisions by federal courts in Massachusetts highlight barriers to litigating FLSA cases on a nationwide basis — including a personal jurisdiction defense that could preclude a nationwide collective in many FLSA cases. 

The defendant in the first case was a Fortune 100 company that conducts business pervasively throughout the country.  Yet the defendant defeated conditional certification of a nationwide FLSA collective action by showing that the court lacked personal jurisdiction as to claims by non-Massachusetts workers.

In denying a motion to allow workers nationwide to join the suit, the United States District Court for the District of Massachusetts noted that defendant isn’t incorporated in and doesn’t have its principal place of business in Massachusetts.  Therefore, under the Supreme Court’s rulings in Daimler and Bristol-Myers Squibb, the defendant could be subject to personal jurisdiction in Massachusetts only if the conduct forming the basis for a plaintiff’s claim occurred in Massachusetts.  As the defendant argued, however, nothing that happened in Massachusetts affected the claims of workers who never lived or worked there.  Accordingly, the district court ruled that it had no power to consider the claims of any non-Massachusetts workers and that only Massachusetts workers should receive notice and an opportunity to opt in to the action.

In the second case, brought by employees of a multi-state debt collection company, the court found insufficient evidence that the employer had a company-wide commission policy, and therefore ruled that plaintiffs did not show that employees nationwide suffered from a common policy or practice.  Accordingly, the court limited the issuance of notice of the collective action to a group of Massachusetts employees.

Taken together, these recent cases demonstrate two ways in which employers can resist litigation of FLSA claims on a nationwide basis.  As a threshold matter, an employer that is sued in a state where the employer is not a “citizen” should evaluate whether a proposed nationwide action may be dismissed for lack of personal jurisdiction as to out-of-state plaintiffs.  Additionally, even in the context of an early motion for conditional certification, plaintiffs still must show that a proposed group of opt-in plaintiffs suffered from a common unlawful policy or plan.  Where such evidence is lacking, even employers with widespread operations may be able to prevent nationwide certification.

By: Ariel Fenster

Seyfarth Synopsis:  Courts across the country have frequently weighed in on the unpaid interns/ trainees versus paid employee debate.  Now, the 10th Circuit has jumped into the fray with a decision affirming that a massage therapy student was not an employee under the FLSA and thus need not be paid.

The issue of whether interns and trainees must be paid under the Fair Labor Standards Act (“FLSA”) is a hot topic among companies.  Over the years, courts hearing these suits, and agencies enforcing and interpreting the law, have applied different tests and reached different answers in determining the nature of the employment relationship and the circumstances under which interns must be paid.  Figuring out which test applies and how it applies has been for many employers a pain in the neck for which massage therapy is needed.

Fortunately, in steps a massage therapy school.

This month, in Nesbitt v. FCHN Inc., et al., the 10th Circuit affirmed the District of Colorado’s grant of summary judgment holding that massage therapy students were not employees under the FLSA and thus not entitled to payment.  As part of the curriculum to become a licensed massage therapist, the plaintiff-student was required by the defendant massage therapy school to complete both classroom and clinical education requirements.  The clinical education component included approximately 100 massages to the public, each lasting about 50 minutes.

The schools charged the public discounted rates for the massages because they were being performed by students.  The massages took place at the school where clinic managers and teaching assistants were on site to supervise and provide feedback (the extent of that supervision was disputed by the parties).

In its decision, the district court applied a six-factor totality of the circumstances test.  The six-factor test was originally set out in the landmark Supreme Court case of Walling v. Portland Terminal and later applied by the 10th Circuit in Reich v. Parker Fire Protection District.  The district court applied that test to find the students to not be employees.  It specifically held as follows:

Factor One: The training, even though it includes actual operation of the facilities of the employer, is similar to that which would be given in a vocational school.  Here, the students received vocational training from the school.

Factor Two: The training is for the benefit of the trainees.  Here, the training primarily benefitted the students because they were required to complete these clinical hours to obtain their licenses

Factor Three: The trainees do not displace regular employees, but work under close observation.  Here, the students did not displace regular employees and they worked under the supervision of school instructors.

Factor Four: The employer that provides the training derives no immediate advantage from the activities of the trainees and on occasion its operations may actually be impeded.  Here, there was no dispute regarding the profit that the company made from operating its school.

Factor Five:  The trainees are not necessarily entitled to a job at the completion of the training period. Here, the students were not entitled to employment upon completion of their training.

Factor Six:  The employer and the trainees understand that the trainees are not entitled to wages for the time spent in training. Here, the students and Defendant both understood that they were not entitled to wages for time spent training.

The student appealed the district court’s decision on two bases.  First, the student argued that the district court applied the wrong test and instead should have used the “primary beneficiary test.”  Notably, the primary beneficiary test has been adopted in the 2nd, 6th, and 9th Circuits.  Additionally, on January 5, 2018, the United States Department of Labor (“DOL”) announced that going forward, it would utilize the primary beneficiary test. The DOL’s updated Fact Sheet #71, explains the test, which examines “the ‘economic reality’ of the intern-employer relationship to determine which party is the ‘primary beneficiary of the relationship.”  The 10th Circuit, however, felt bound to follow its prior Reich precedent.

Second, the student argued that even if the Reich test is applied, the factors weigh in favor of an employee-employer relationship, particularly because the massages were not carefully supervised.  But in affirming the district court’s decision, the Court explained that one factor alone is not sufficient to weigh in favor of an employer-employee relationship. As the district court had stated, “I look at the forest, not just the trees.”

The Takeaway for Employers:  Employers interested in establishing or maintaining an unpaid internship or trainee program should ensure that  the program is connected to a formal educational program.  And although no single factor is dispositive, certain factors can and should be clarified in a written agreement between the intern, the employer, and the employee with an eye toward the various tests courts use to decide whether an intern or trainee must be considered an employee, and thus whether the intern or training must be paid minimum wage and overtime.

By Abigail Cahak and Noah Finkel

Seyfarth Synopsis: The DOL has reissued a long-awaited opinion letter withdrawing its previous 20% tip credit rule and making clear that “no limit is placed on the amount of [related but non-tipped] duties that may be performed,” so long as they are performed “contemporaneously with the duties involving direct service or for a reasonable time immediately before or after” direct service.

For about a decade, restaurant employers have faced the daunting prospect of collective and class action litigation by their servers and bartenders paid under the tip credit claiming that they spent more than 20% of their time on so-called side work that didn’t directly produce tips  Without incredibly detailed time records showing exactly when each server engaged in each of their various duties, restaurants have had a hard time rebutting such claims.  Further, because servers and bartenders at restaurants usually are asked to perform somewhat similar duties, restaurateurs usually have not fared well in defeating certification efforts in such cases.

Those collective and class actions all stem from DOL guidance that the tip credit may not be used to the extent an employee spends more than 20% of their time on non-tip producing work.

Late last week, however, the DOL’s Wage-Hour Division issued a long-awaited opinion letter intended to clear up “confusion and inconsistent application” stemming from guidance contained in its Field Operations Handbook (“FOH”) regarding use of the tip credit to pay regularly tipped employees.  The opinion letter provides clarity as to when and how often a tipped employee may perform non-tipped tasks and is welcome guidance to many employers.

Under the FLSA regulations, an individual employed in dual occupations–one tipped and one not–cannot be paid using the tip credit for hours worked in the non-tipped occupation.  The regulations clarify, however, that “[s]uch a situation is distinguishable from that of a waitress who spends part of her time cleaning and setting tables, toasting bread, making coffee[,] and occasionally washing dishes or glasses. . . . Such related duties in an occupation that is a tipped occupation need not by themselves be directed toward producing tips.”  Yet, DOL guidance interpreting the regulations, contained first in the DOL’s FOH and then set forth in an amicus brief, imposed time and duty-based limitations not present in the regulations themselves: the tip credit may not be used if an employee spends over 20% of hours in a workweek performing duties related to the tipped occupation but not themselves tip-generating.  Deference to the DOL’s guidance and enforceability of the 20% rule has caused a circuit split, with the Eighth and Ninth Circuit Court of Appeals following the rule, and the Eleventh Circuit refusing.  (We previously blogged on the Eighth and Ninth Circuit decisions.)

On November 8, the DOL reissued an opinion letter it had previously handed down in the final days of the Bush Administration, but subsequently withdrew in the first months of President Obama’s first term.  The letter provides clarity as to the DOL’s position on the 20% rule, stating that “no limit is placed on the amount of [related but non-tipped] duties that may be performed, whether or not they involve direct customer service, as long as they are performed contemporaneously with the duties involving direct service or for a reasonable time immediately before or after performing such direct-service duties.”   (emphasis added)

With respect to whether a particular duty is related to the tipped occupation, the opinion letter refers readers to O*NET, an occupational database created under the sponsorship of the DOL.  O*NET provides reports of the tasks involved for various occupations, including servers and bartenders.  O*NET’s task list is often very detailed and includes, for example, many tasks plaintiffs’ counsel regularly argue are completely outside a server’s occupation (e.g., “[p]erform cleaning duties, such as sweeping and mopping floors, vacuuming carpet, tidying up server station, taking out trash, or checking and cleaning bathroom”).  The opinion letter further states, however, that if a task is not on the O*NET list, an employer may not take the tip credit for time spent performing the duty (while nonetheless acknowledging that such time may be subject to the FLSA’s de minimis rule).

The reasoning of those courts that followed the 20% rule was deference to the DOL’s expertise in interpreting its own dual jobs regulation.  Now, however, that rule is gone (indeed, the opinion letter states that a revised FOH is “forthcoming”), leaving it unlikely (but not impossible) that courts will continue to follow the FOH.  And although state laws may differ, because many court interpretations of state wage and hours laws have depended on analogy to the federal FLSA, it also is unlikely that the 20% rule will continue to apply to such claims.

Of course, it is possible that the rule could reemerge under a future Democratic administration, but even so, courts may no longer defer to a re-instituted 20% rule because they often reject administrative agency guidance that changes with the political winds.

By David S. Baffa, Noah A. Finkel, and Joseph S. Turner

Seyfarth Synopsis: Congress has once again proposed legislation that would seek to ban mandatory workplace arbitration of employment claims, despite a string of United States Supreme Court decisions upholding arbitration and class/collective action waivers as a lawful and appropriate mechanism to resolve workplace disputes. 

H.R. 7109, the Restoring Justice for Workers Act, was introduced by Representative Jerrold Nadler, D-N.Y., and Representative Bobby Scott, D-Va., with 58 Democratic co-sponsors.  Similar legislation is expected to be introduced in the Senate by Senator Patty Murray, D-Wash, with eight Democratic co-sponsors.  The proposed legislation would  overturn the U.S. Supreme Court’s decision in Epic Systems, and would amend the National Labor Relations Act to specifically prohibit class and collective action waivers under a new “Section 8(a)(6).”

As proposed, the new law would prohibit any pre-dispute agreement requiring arbitration of employment disputes.  The law also would prohibit post-dispute agreements to arbitrate, unless the agreement is obtained without coercion or condition of employment-related privilege or benefit.  Employees entering into voluntary post-dispute agreements also must be made aware of their rights under what would be a new section of the National Labor Relations Act.  That new section would make it an unfair labor practice to “enter into or attempt to enforce any [pre-dispute] agreement” that would bar or prohibit class or collective actions relating to employment, or to retaliate against any employee for refusing to promise not to pursue a class claim.

While there is no chance that this bill will move in the House of Representatives as currently comprised, it previews the legislation Democrats are likely to pursue if the House changes control next week.  A bill like this could even put a narrowly-controlled Republican Senate to the test, as the perceived unfairness of pre-dispute mandatory arbitration has been the target of considerable media attention, social media campaigns, and as recently as yesterday — large-scale employee activism.  As such, protecting mandatory arbitration of workplace disputes may be an issue on which even conservative legislators might waver.

Indeed, this is not Congress’ first attempt to ban workplace arbitration.  Before the Supreme Court’s decision in Epic Systems, and as part of the #metoo movement, Congress introduced in December 2017, bi-partisan legislation ostensibly aimed at preventing employers from enforcing arbitration agreements of sexual harassment claims.  That bill, “Ending Forced Arbitration of  Sexual Harassment Act,” was introduced by Senator Kristen Gillibrand, D-NY (and attracted some Republic support), but was penned in a way that would actually ban workplace arbitration in its entirety.  We figured it was an oversight at the time, as written in our blog, “Slow Down Congress: You Are About to Render the FAA Inapplicable to Employment Disputes (and Class Waivers), and You Probably Don’t Realize It.”  Clearly, this week’s Halloween bill was no accident.

Most legislative action against workplace arbitration has centered on the idea of prohibiting arbitration of sexual harassment claims, and by extension all other Title VII claims.  Among the earliest efforts begun in 2009, when — perhaps ironically — then-Senator Al Franken pursued the Arbitration Fairness Act, which sought to prohibit the mandatory arbitration of sexual harassment claims.  While that legislation was not successful, Senator Franken’s efforts led to provisions in the Department of Defense Appropriations Act of 2010, which to this day prohibits contractors to the U.S. DoD, with limited exceptions, from requiring arbitration of Title VII claims (including sexual harassment claims).  Under President Obama, the DoD prohibition was expanded by his Fair Pay and Safe Workplaces Executive Order on July 31, 2014, effective January 2016, to all federal contractors.  President Trump, however, rescinded this EO shortly after taking office in late 2016.

Several state legislatures have sought to ban mandatory arbitration of sexual harassment claims.  Washington, Maryland, and New York each passed laws that would prohibit mandatory arbitration of sexual harassment claims, but those laws are either explicitly or presumptively preempted by the Federal Arbitration Act.  See our Client Alert on the New York Ban.

Facing increasing headwinds against mandatory arbitration of sexual harassment claims, several large companies have proactively and publicly declared that they will exempt sexual harassment claims from existing mandatory arbitration programs.  Other companies also are considering more limited arbitration programs, such as mandatory arbitration and class waivers for wage-hour claims only.  But the Halloween bill and other attempts to ban workplace arbitration altogether are also becoming more common following Epic.  The California legislature passed a law that would have barred arbitration of any violation of the California Labor Code or the Fair Employment and Housing Act, but it was vetoed by Governor Brown on September 30, 2018.  Governor Brown’s term ends this year, and on November 6th Californians will pick a new Governor of California to take office on January 7, 2019.

Kentucky also recently joined the fray.  On September 27, 2018, the Kentucky Supreme Court, in Northern Kentucky Area Development District v. Snyder shot down a workplace arbitration agreement on the basis that a mandatory arbitration agreement for employment claims is prohibited by Kentucky law, and not preempted by the Federal Arbitration Act.   Kentucky’s law prohibits any employer from requiring as a condition of employment an employee to “waive, arbitrate, or otherwise diminish any existing or future claim, right, or benefit…”.  The Court ruled that the statute was not an anti-arbitration clause provision, but an anti-employment discrimination provision.  Of course, calling arbitration a diminution of rights are “fightin’ words” to the U.S. Supreme Court, so we remain on the lookout for a cert petition.

For now, employers are staying the course.  Many companies remain interested in implementing dispute resolution procedures and mandatory arbitration programs that would limit their exposure to class and collective actions.  Most employers report faster and more efficient resolution of workplace grievances and concerns, with more ability to direct money and time to the resolution of real complaints, rather than simply to line the pockets of class action plaintiffs’ lawyers.

For more information on this topic, please contact the authors, your Seyfarth Attorney, or any member of the Firm’s Labor & Employee Relations Team.

By: Alexander Passantino

The Department of Labor issued its Fall 2018 regulatory agenda, and the Wage & Hour Division is front and center. New to the agenda is a proposed rule on joint employment under the FLSA. Acknowledging that its regulations have not been updated in 60 years and no longer reflect the realities of the workplace, WHD is proposing changes “intended to provide clarity to the regulated community and thereby enhance compliance. WHD also “believes the proposed changes will help to provide more uniform standards nationwide.” A proposed rule is expected in December.

Remaining on the agenda are WHD’s proposals to (1) update the salary level required for the FLSA exemption for executive, administrative, and professional employees and (2) clarify, update, and define basic rate and regular rate requirements. The salary level proposal is expected in March 2019, and the regular rate proposal is expected December 2018.

It’s shaping up to be an incredibly busy couple of months at WHD. We’ll update you as more information becomes available.