Employers Rethink Mandatory Arbitration

Mandatory Arbitration

Mandatory Arbitration

Recently, there has been an important trend in employment law: some employers are no longer requiring there employees to agree to mandatory arbitration. This change has several important benefits for employees. One, employees get to bring their cases in court, where they have the right to a jury (this is not the case in arbitration). Two, most arbitration agreements contain a class waiver, which means that employees have to bring their claims in arbitration individually and cannot sue their employer in a class or collective action. In court, employees can pool their resources and seek relief as a group in a class or collective action.

There are a few takeaways here:

• If employees already have signed arbitration agreements, they should check with their employer to see if the agreements are still in effect.
• If an employer is still using and enforcing arbitration agreements, employees can still challenge their validity and enforceability.
• If the employer’s arbitration agreement is valid and enforceable, employees can still pursue their claims in arbitration. Even if there is a class waiver, employers sometimes will not enforce it if faced with multiple individual claims which it must defend.

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 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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More Salaried “Managers” Are Eligible for Overtime

The common misconception that all salaried employees are not eligible for overtime is a hard one to overcome. Two factors determine whether a salaried manager is entitled to overtime: (1) the amount of the salary; and (2) the primary duties. Focusing on the first requirement – called the salary-basis test — several states raised the minimum threshold for a salaried employee to be eligible for overtime, effective 2021. Currently the federal minimum salary level is $35,568 annually. That means that “managers” making less than this amount satisfy the salary-basis test threshold and may be eligible for overtime, depending on their duties.

The Biden administration is seeking to raise this minimum threshold, which would affect workers nationwide. However, several states have raised the minimum threshold on their own, including Alaska, California, Colorado, Maine, New York, Pennsylvania, and Washington – all effective in 2021.
By increasing the salary for overtime-eligible employees, more workers are entitled to overtime. If you are a salaried employee making less than $35,568, or if you live in one of the states enumerated above, and believe that your duties are similar to those of the overtime-eligible, hourly employees with whom you work, please 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 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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“Sidework” by Tipped Employees = Full Minimum Wage!

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 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

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 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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2021 Ushers in New State Employment Laws

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 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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Minimum Wage Increases Kick Off 2021

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 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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What’s Up with WFH and Overtime?

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 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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President-Elect Biden’s Pro-Worker Stance

On November 7, 2020, Joe Biden surpassed the 270 electoral votes necessary to become the 46th president of the United States. Before serving as Vice President in the Obama Administration, Biden also served for decades in the United States Senate, where he advanced the cause of workers. As president, Biden plans to make it easier for all workers to unionize and specifically supports educators being able to bargain for better pay and benefits, in addition to having a voice in decisions that affect their students. Biden also supports legislation raising the federal minimum wage to $15 per hour. Furthermore, Biden will seek to ban forcing employees to give up their rights to bring class action class in court by forcing them into arbitrations where they can only bring individual actions. He also has promised to have various departments within his administration – including the Department of Labor and the Justice Department – to aggressively pursue employers who violate federal employment laws.

While Biden’s ability to enact some of these pro-employee legal changes depends on Congress, there are various areas where he can implement substantive pro-worker changes through executive action. Every candidate being considered for the Secretary of Labor has years of advocacy on behalf of workers — so, workers can be assured that no matter who assumes the role of Secretary of Labor, there will be robust enforcement of existing worker-protection statutes in a Biden Administration.

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.

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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Worker Justice from the Newest Supreme Court Justice?

Amy Coney Barrett just assumed her position as an associate Justice of the United States Supreme Court, replacing the late Justice Ruth Bader Ginsburg. Prior to becoming the ninth seat on the Supreme Court, Justice Barrett served as a judge on the Seventh Circuit Court of Appeals. Many are concerned that if her tenure on the Seventh Circuit is indicative of how she might rule on employment issues, American workers’ rights may be in jeopardy. For example, Justice Barrett ruled that being called the “N” word did not violate Title VII’s prohibition on hostile work environments. In fact, Justice Barrett sided with employers and corporations over 75% of the time as a judge on the Seventh Circuit.

What does this mean for workers? For one thing, it is important to remember that only a miniscule percentage of cases make it to the Supreme Court. And while lower courts are bound by Supreme Court precedent, those courts do interpret those decisions based upon the facts in an individual case. Therefore, workers should not be discouraged. SLG handles all manner of employment cases, including violations related to overtime and other wage issues; equal pay discrimination; discrimination based upon race, age, and disability; and ERISA.

If you believe your rights as a worker have been violated, Shavitz Law Group is here to help. Please contact us at [email protected] or 800-616-4000 to discuss whether you have a case.

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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Equal Pay for Equal Work: Carrying On Ruth Bader Ginsburg’s Legacy

Ruth Bader Ginsburg served on the United State Supreme Court as an Associate Justice for 27 years, and thirteen years before on the United States Court of Appeals for the District of Columbia. Even before her years as a judge, Ginsburg was a trailblazing advocate for equal rights for women.

When Ruth Bader Ginsburg was a young lawyer at the American Civil Liberties Union (ACLU), she co-founded the Women’s Rights Project. Ginsburg oversaw hundreds of gender discrimination cases. Many of these cases championed women’s financial rights, including the right to equal pay. The victories of the Ginsburg-led Women’s Rights Project led to significant advances in financial equality for women.

Notwithstanding these achievements, there is still work to be done. Issues like the gender wage gap still persist. The average woman in the U.S. earned 81.6 cents to every dollar men earned in 2018, and that gap widens for women of color. Congress enacted the Equal Pay Act (EPA), part of the Fair Labor Standards Act (FLSA) to ensure that women are paid the same money for the same work. Yet discrepancies still persist.

Upon Ginsburg’s passing, SLG is committed to carrying the torch forward. Every American worker – indeed, every person in this country — has benefitted from Justice Ginsburg’s work to ensure equality for all.

If you believe that you – or a woman you know – is being paid less money for the same work performed by a male co-worker, contact The Shavitz Law Group about your equal rights, at [email protected] or at 800-616-4000. We would be happy to assist you in a free consultation to discuss your concerns.

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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