Employment Law Update: Arbitration, Joint-Employer and Tips

Epstein Becker Green’s Employment Law This Week® monthly rundown features a recap of the most important labor, employment, and workforce management news from November 2018.

George Whipple hosts this month’s episode covering:

1. DOL releases new guidance on minimum wage for tipped workers

The Department of Labor (DOL) rolled back the 80/20 rule. The rule prohibited employers from paying the tipped minimum wage to workers whose untipped side work — wiping tables — accounted for more than 20% of their time. In the midst of a federal lawsuit challenging the rule, the DOL reissued a 2009 opinion letter stating the agency will not limit the amount of side work a tipped employee performs, as long as that work is done “contemporaneously” with the tipped work or for a “reasonable time” before or after that work. The letter was previously withdrawn by the Obama administration. Epstein Becker Green’s own Paul DeCamp, who played a leading role in litigation opposing the rule, has more:

“The new guidance should lead to victories for employers in these cases where plaintiffs are seeking relief premised on the validity of the 80/20 guidance, which has now been withdrawn. By eliminating the 80/20 rule, the courts will see that the Department of Labor does not adhere to its position that it’s had since 1988, off and on. What this will mean is that claims against the restaurant industry that rely on the 80/20 guidance will probably fail, because there is now no longer any legal basis, at least under federal law, to pursue those claims.”

2. Transgender rights in the workplace

The national debate over legal protections for transgender workers could be coming to a head. The US Supreme Court will soon decide whether to resolve a circuit court split over whether Title VII of the Civil Rights Act of 1964 protects gay and transgender employees. Recent media reports suggest that the Trump administration is considering establishing a legal definition of “sex” that could have the effect of rolling back all federal protection for gay and transgender individuals, as well as any recognition of transgender status. In response to those reports, nearly 180 companies have signed a statement opposing “any administrative and legislative efforts to erase transgender protections through reinterpretation of existing laws and regulations.”

3. Tech companies end mandatory arbitration of sexual harassment claims

Technology companies will allow sexual harassment claims to go to court. In November, several tech companies, including Airbnb, eBay, and Square, announced that they would make arbitration optional for individual sexual misconduct claims. Microsoft and Uber have also made similar changes in the past year. While the trend is most notable in the tech industry, there has been some movement in other sectors with competitive talent markets. But in light of the Supreme Court’s Epic Systems decision earlier this year, which allowed employers to require such claims to be arbitrated, it is unclear how widespread the shift will be.

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4. NLRB moves forward on joint employment

The National Labor Relations Board (“NLRB” or “Board”) moves forward with its new rule to redefine “joint employer” status. The extended comment period for the rule ends on December 13. Board Member William Emanuel has been cleared of any conflicts of interest for his role, so the rulemaking process should now continue on schedule.  Not so fast with potential changes to the so-called “quickie election rule,” though. That Obama-era rule significantly shortened the average time between the filing of a petition and the date of votes on union representation. While many saw a 2017 Request for Comments on the rule as a sign that the Board might move forward with changes, the agency recently announced that reconsidering the election rule has been downgraded to a “long-term” action item.

5. Tip of the week

Finally, Michele Robertson, vice president and general counsel for Hospital Therapies at Mallinckrodt Pharmaceuticals, has some advice on assessing potential conflicts of interest:

“A lot of times, I depend on other resources within the company, like my HR representative, to help me determine whether there’s a conflict of interest and what to do, and whether I need to pull from resources around the company to help me. I think for me it’s a very measured approach to first assess the conflicts of interest and then decide what path makes sense so that I can protect the employee and then—of utmost importance—the corporation, which is, at the end of the day, my client.”

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Epstein Becker & Green, P.C., is a national law firm with a primary focus on health care and life sciences; employment, labor, and workforce management; and litigation and business disputes. Founded in 1973 as an industry-focused firm, Epstein Becker Green has decades of experience serving clients in health care, financial services, retail, hospitality, and technology, among other industries, representing entities from startups to Fortune 100 companies.  Operating in offices throughout the U.S. and supporting clients in the U.S. and abroad, the firm’s attorneys are committed to uncompromising client service and legal excellence.  For more information, visit www.ebglaw.com.