Archive Monthly Archives: March 2018

NEw Guidence

New Guidance on Tipped Wages

The 2,232-page budget spending bill that was signed by President Trump on March 23, 2018, included an amendment to the Fair Labor Standards Act (FLSA) prohibiting employers, managers, or supervisors from collecting or retaining tips made by employees, regardless of whether the employer takes a tip credit.

This law essentially blocked the U.S. Department of Labor’s 2017 proposed rule which would have allowed tip sharing between employees who directly earn them with “back of the house” employees who “[c]ontribute to the overall customer experience,” but do not traditionally receive direct tips, such as cooks and dishwashers.

The next step with the DOL’s proposed rule could be that the agency pulls it or conforms the rulemaking to the spending bill. However, experts are concerned that the bill did not go far enough to provide clear and concise definitions. For example, in the restaurant industry employees can wear many hats. So what happens when a food server is the shift lead? Is a shift lead a manager or supervisor because they are granted authority, be it minimal authority, over other food servers? Employers will be looking to the DOL to provide more specifics.

For the time being, the FLSA standard continues, “[a] valid tip pool may not include employees who do not customarily and regularly received tips, such as dishwashers, cooks, chefs, and janitors.”

March Congruity

March Congruity Q&A: Final Paycheck After Theft.

Question: 

We had an employee walk off the job after admitting that she was stealing money and property from the workplace. She has not returned to pick up her last paycheck. What is our obligation regarding her last paycheck?

Answer:

Regardless of the theft, you cannot withhold pay from a current or terminated employee. You are required to mail her final pay to her last known address. If the check is not processed or is returned, then mail the unclaimed wages along with an explanation to the nearest labor commissioner office or governmental agency office that handles such issues in your state. Importantly, document in detail

all your actions and efforts along with the employee’s reactions or lack thereof.

If you have not already done so, a best practice would be to provide notice to the employee documenting the reason for her termination (the admission of her act of theft from the workplace and that she has voluntarily terminated her employment as a result of the theft). However, you should also inform her that the company must ensure final pay is provided and that the recovery of any money or property she stole will be pursued through the proper legal channels.

Of note, employers are not required by federal law to give former employees their final paycheck immediately. Some states, however, may require immediate payment. If the regular payday for the last pay period your employee worked has passed and she still has not been paid or has not collected her wages, then you may also contact the Department of Labor’s Wage and Hour Division or the state labor department.