california allows regularly recurring alternative · pdf filecalifornia allows regularly...

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1 www.jacksonlewis.com INSIDE THIS ISSUE: Wage/Hour Self-Audit Checklist: An Essential Employer Tool Alternative Workweeks Checklist (California) Summer Internships Are Not Free Labor Are You in Compliance with California’s Independent Contractor Reporting Law? Federal Minimum Wage to Increase California Tip Pooling Rules Are Broadened 42 Jackson Lewis Attorneys Selected for Chambers Guide Register Your California Supervisors for California AB 1825 Compliance Training! 4 6 7 8 ABULLETIN ON EMPLOYMENT ,LABOR,BENEFITS AND IMMIGRATION LAW FOR CLIENTS AND FRIENDS OF JACKSON LEWIS LLP Summer 2009 All We Do Is WorkSM T he California Division of Labor Standards Enforcement (DLSE) has issued an opinion letter to Jackson Lewis approving an employer’s proposed alternative workweek schedule for a specif- ic period annually on condition that the schedule recur regularly. The DLSE action is significant because it avoids a strict interpretation of the state Labor Code and Wage Order that suggests such arrangements are not permitted. The opinion letter permits an employer to adopt a schedule of four nine-hour days (Monday through Thursday) and one four-hour day (Friday) from June to September, while maintaining a schedule of five eight-hour days (Monday through Friday) during the balance of the year. The DLSE also stated that, if the proposed schedule would recur in subsequent years, the employer would need to conduct a secret- ballot election among affected employees to approve the alternative summer workweek schedule, but only once. Under California law, employees may adopt, by secret-ballot election, a regularly scheduled alterna- tive workweek that authorizes work for no longer than 10 hours per day within a 40-hour workweek, without the payment of overtime. An “alternative workweek schedule” is defined as “any regularly scheduled workweek requiring an employee to work more than 8 hours in a 24-hour period.” “Regularly scheduled” means that the employer must schedule the actual work days in advance and give employees notice of the changes to their regular schedule. Moreover, the alternative workweek schedule cannot create a system of “on call” employment where employees would be subjected to a continually changing schedule. Also, employers cannot reduce employees’ regular hourly rate of pay. The DLSE noted that neither the Labor Code nor the applicable Wage Order “requires that an alterna- tive workweek schedule be implemented for each workweek of the year,” and the DLSE declined “to impose such restrictions on the schedule proposed here.” Rather, the schedule must be “regularly recurring.” The DLSE found that the proposed schedule of four nine-hour days and one four-hour day during the summer months met this require- ment. The DLSE also stated that if the alternative workweek schedule remains the same each year and is presented to the employees for adoption in accordance with the Wage Order, the employer may conduct one election and, if approved and the schedule does not change in future years, the employer need not conduct further elections. “Jackson Lewis is pleased that the DLSE permitted this accommodation for our client as it provides this company and other employers in California continued flexibility in workweek scheduling,” says Samantha Hoffman, the partner in the Orange County Jackson Lewis office who requested the opinion. California Allows Regularly Recurring Alternative Workweek Schedule 2 3

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INSIDE THIS ISSUE:

Wage/Hour Self-AuditChecklist: An EssentialEmployer Tool

Alternative WorkweeksChecklist (California)

Summer Internships Are Not Free Labor

Are You in Compliance withCalifornia’s IndependentContractor Reporting Law?

Federal Minimum Wage toIncrease

California Tip Pooling Rules Are Broadened

42 Jackson Lewis AttorneysSelected for Chambers Guide

Register Your CaliforniaSupervisors for California AB1825 Compliance Training!

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A BULLETIN ON EMPLOYMENT, LABOR, BENEFITS AND IMMIGRATION LAW FOR CLIENTS AND FRIENDS OF JACKSON LEWIS LLP

Summer 2009

All We Do Is WorkSM

The California Division of Labor StandardsEnforcement (DLSE) has issued an opinion

letter to Jackson Lewis approving an employer’s proposed alternative workweek schedule for a specif-ic period annually on condition that the schedulerecur regularly. The DLSE action is significantbecause it avoids a strict interpretation of the stateLabor Code and Wage Order that suggests sucharrangements are not permitted.

The opinion letter permits an employer to adopt aschedule of four nine-hour days (Monday throughThursday) and one four-hour day (Friday) from Juneto September, while maintaining a schedule of fiveeight-hour days (Monday through Friday) duringthe balance of the year. The DLSE also stated that, if the proposed schedule would recur in subsequentyears, the employer would need to conduct a secret-ballot election among affected employees to approvethe alternative summer workweek schedule, butonly once.

Under California law, employees may adopt, bysecret-ballot election, a regularly scheduled alterna-tive workweek that authorizes work for no longerthan 10 hours per day within a 40-hour workweek,without the payment of overtime. An “alternativeworkweek schedule” is defined as “any regularlyscheduled workweek requiring an employee to workmore than 8 hours in a 24-hour period.” “Regularly

scheduled” means that the employer must schedulethe actual work days in advance and give employeesnotice of the changes to their regular schedule.Moreover, the alternative workweek schedule cannotcreate a system of “on call” employment whereemployees would be subjected to a continuallychanging schedule. Also, employers cannot reduceemployees’ regular hourly rate of pay.

The DLSE noted that neither the Labor Code northe applicable Wage Order “requires that an alterna-tive workweek schedule be implemented for eachworkweek of the year,” and the DLSE declined “toimpose such restrictions on the schedule proposedhere.” Rather, the schedule must be “regularlyrecurring.” The DLSE found that the proposedschedule of four nine-hour days and one four-hourday during the summer months met this require-ment.

The DLSE also stated that if the alternative workweek schedule remains the same each year and is presented to the employees for adoption inaccordance with the Wage Order, the employer may conduct one election and, if approved and the schedule does not change in future years, theemployer need not conduct further elections.

“Jackson Lewis is pleased that the DLSE permittedthis accommodation for our client as it provides this company and other employers in California continued flexibility in workweek scheduling,” says Samantha Hoffman, the partner in the OrangeCounty Jackson Lewis office who requested theopinion.

California AllowsRegularly Recurring Alternative WorkweekSchedule

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An affected employee working longer than eighthours in a day, but not more than 12 hours, underan alternative workweek schedule must be paidovertime equal to no less than one-and-one-halftimes the regular rate of pay (time and a half) forany work in excess of the regularly scheduled hoursestablished by the alternative workweek agreementand for any work in excess of 40 hours per week.

Overtime equal to no less than double the regularrate of pay (double time) must be paid for any workin excess of 12 hours per day and for any work inexcess of eight hours on days worked beyond theregularly scheduled workdays established by thealternative workweek agreement. An employer isnot required to combine more than one rate of over-time compensation in order to calculate the amountto be paid to an employee for any hour of overtimework. (Slightly different rules apply to the healthcare industry.)

Does Your Alternative Schedule PassMuster?Jamerson C. Allen, a partner in our San Franciscooffice, has developed a comprehensive checklist toassist in reviewing an employer’s compliance statuswith the wage and hours provisions of state and fed-eral law. The checklist covers most areas in whichemployers may have compliance difficulties, and isdesigned to be used while conducting an audit inconsultation with knowledgeable legal counsel. Seethe following page for a sample checklist that dealswith alternative workweek schedules in California.

Jackson Lewis strongly recommends that employersconsult with counsel in performing, completing,reviewing and analyzing audits. Audits shouldinclude a notation on each page stating they wereprepared at the direction of counsel. By includingthis notation, your organization will be in a positionto assert the attorney-client or attorney work-prod-uct privilege.

Wage and hour violations are some of the most diffi-cult cases for employers to defend and among thecostliest to lose. Neglecting to compensate workersfor all compensable work time, violating minimumwage requirements, failing to provide required mealand rest periods, misclassifying employees as inde-pendent contractors, and failing to report total pay-roll can lead to steep penalties, back-pay awards, andeven tax problems.

Regular self-audits can help employers pinpointareas of potential wage/hour exposure and guardagainst possible liability while reducing their risk ofinadvertent violations. Employers may wish to havean initial audit designed and administered by coun-sel to protect attorney-client communications andattorney work product to the extent possible.

One Area for Self Audit: AlternativeWorkweek RegulationsOn February 20, 2009, California Governor ArnoldSchwarzenegger signed into law a Labor Codeamendment effectively codifying the rules governingemployees’ adoption of employer-proposed alterna-tive workweek schedules. Under the amended law,employees may adopt a regularly scheduled alterna-tive workweek proposed by their employer, author-izing them to work for no longer than 10 hours perday within a 40-hour workweek, without the pay-ment of overtime.

A proposal to adopt an alternative workweek sched-ule will be deemed adopted only if approved in asecret-ballot election by at least two-thirds of affect-ed employees in a readily identifiable work unit.The proposed alternative workweek may be a singlework schedule that would become the standardschedule for workers in the work unit, or a menu ofwork schedule options from which each employee inthe unit could choose. The menu may include a reg-ular schedule of eight-hour days. Employees whoadopt a menu of work schedule options may, withemployer consent, move from one option to anotheron a weekly basis.

Wage/Hour Self-AuditChecklist: An EssentialEmployer Tool

EDITORIAL BOARD:

Jamerson C. Allen, [email protected]

Mark S. Askanas, [email protected]

Roger Kaplan, Esq. 631-247-0404 [email protected]

Michael J. Lotito, Esq. 415-394-9400 [email protected]

Mei Fung So, Esq. 212-545-4000 [email protected]

This Update is provided for informa-tional purposes only. It is not intendedas legal advice nor does it create anattorney/client relationship betweenJackson Lewis LLP and any readers or recipients. Readers should consultcounsel of their own choosing to discuss how these matters relate totheir individual circumstances.Reproduction in whole or in part isprohibited without the express writtenconsent of Jackson Lewis LLP.

This Update may be considered attorney advertising in some states.Furthermore, prior results do not guarantee a similar outcome.

Jackson Lewis LLP represents manage-ment exclusively in workplace law andrelated litigation. Our attorneys areavailable to assist employers in theircompliance efforts and to representemployers in matters before state and federal courts and administrativeagencies. For more information, pleasecontact the attorney(s) listed or theJackson Lewis attorney with whom you regularly work.

© 2009, Jackson Lewis LLP

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Alternative Workweeks Checklist (California)

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1. Do any hourly employees work pursuant to an alternative workweek schedule regularly requiring the employees to work more than 8 hours in a day?

2. If the answer to question 1 is “Yes,” prior to instituting the alternative workweek schedule:

• Did the organization analyze employee job duties to determine if they are an appropriate “work unit”for purposes of an alternative workweek schedule?

• Did the organization propose a written agreement tothe affected employees in the work unit designatinga regularly-scheduled alternative workweek with aspecified number of work days and work hours:

– not to exceed 10 hours in a workday during a 40-hour workweek? or

– for employees in the healthcare industry, not to exceed 12 hours in a workday during a 40-hour workweek?

• Did the organization provide a written disclosure tothe affected employees, including:

– the effects of the proposed schedule on the employees’ wages, hours and benefits? and

– the date and time of a meeting for the specific purpose of discussing the effects of the alternative workweek schedule?

• If at least 5% of the affected employees primarilyspeak a language other than English, did the organization provide the written disclosure in that language?

• Did the organization mail the disclosure to all affect-ed employees who did not attend the meeting?

• Did the organization conduct the meeting to discussthe effects of the alternative work schedule at least14 days before the secret-ballot election?

• Did the organization hold a secret-ballot election atthe work site, during regular work hours?

• Did the organization bear the costs of conductingthe election?

• Did at least 2/3 of affected employees in the workunit vote in favor of the alternative workweek?

• Did the organization wait 30 days after announcingelection results approving the alternative schedulebefore requiring the employees whose schedules were changed thereby to work the new schedule?

• Did the organization report the results of the election, regardless of the outcome, to California’sDivision of Labor Statistics and Research within 30 days of the vote, including the final tally of thevote, the size of the work unit and the nature of the organization’s business?

3. Are the employees in the work unit paid one andone-half (11/2) times their regular rate of pay for:

– any work in excess of the regularly scheduled hours established by the alternative workweek agreement? and

– any work in excess of 40 hours per week?

4. Are the employees in the work unit paid doubletheir regular rate of pay for:

– any work in excess of 12 hours per day? and

– any work in excess of 8 hours on those days beyond the regularly-scheduled workdays established by the alternative workweek agreement?

5. If the organization requires an employee to workfewer than the agreed-upon hours in a workweekpursuant to the alternative workweek schedule,does the organization:

• pay the employee 11/2 times his regular rate of payfor all hours worked in excess of 8 hours? and

• pay the employee double the employee’s regularrate of pay for all hours worked in excess of 12hours?

6. Has the organization reduced an employee’s regular rate of hourly pay as a result of the adoption or repeal of an alternative workweekschedule?

7. Does the organization regularly schedule employees according to the elected alternativeworkweek schedule?

8. Does the alternative workweek schedule provideno fewer than 2 consecutive days off within aworkweek?

9. Has the organization explored any available reasonable alternative means of accommodatingthe religious belief or observance of an affectedemployee that conflicts with an adopted alternative workweek schedule?

10. Has the organization made a reasonable effort tofind a work schedule not exceeding 8 hours in aworkday to accommodate any affected employeewho was eligible to vote in the alternative workweek election and is unable to work thealternative workweek schedule established as the result of the election?

11. Has the organization provided a work schedulenot exceeding 8 hours in a workday to accommo-date any employee who is hired after the date of the election and who is unable to work thealternative workweek schedule established by the election?

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The U.S. Department of Labor has consistentlyapplied these principles in response to questionsabout the employment status of student interns.Accordingly, whether or not student interns at yourorganization are employees under the FLSA willdepend upon all the circumstances surroundingtheir activities. Provided the six criteria listed aboveare met, the U.S. Department of Labor says that students will not be considered employees if…

• Educational or training programs are designed toprovide them with professional experience in thefurtherance of their education, and

• The training is academically oriented for the benefit of the students.

The following are some rules relating to theemployee/unpaid-intern distinction imposed bysome west coast states. Generally, employers mustcomply with all FLSA provisions and with state lawsthat are more restrictive in favor of the employee orrequire higher pay.

AlaskaThe Alaska Administrative Code allows for theemployment of learners (undefined in the law) atsubminimum wages for fixed periods, subject to certain restrictions. An exemption for student learn-ers from minimum wage is available when a studentlearner is enrolled in a course of study and trainingin a cooperative vocational training program under a recognized state or local educational authority orin a substantially similar program conducted by aprivate school. The employer and the student learn-er’s school coordinator or principal must apply forthe exemption from the Alaska Department ofLabor and Workforce Development. A subminimumwage rate authorized under this provision cannot be less than 75 percent of the state minimum wage.8 AAC §15.125.

ArizonaThe Industrial Commission of Arizona (ICA) hasadopted the FLSA’s six-prong test as set forth inWalling to determine whether, and under what con-ditions, a worker, trainee, learner, or intern is con-sidered an employee, for purposes of the state’s wagehour laws in its March 27, 2009, advisory policystatement, however, the ICA did not opt to requirethe educational relationship adopted by California(see below), but said it would “consider as relevantwhether a worker, who without an implied orexpress agreement for compensation, performs workfor the worker’s own personal purposes as opposed tothe employer’s.” Arizona Rev. Stat. § R20-5-1205.

Prompted by the recession and the resulting lossof jobs, people of all experience levels reportedly

are applying for internships with companies, andoften are willing to work without pay in order toget their feet in the door. Employers may have theirpick of applicants to fill paid and unpaid positions.Summer will undoubtedly swell the ranks of thoseseeking internships as thousands of students seekwork.

While many employers make paid internships available during the summer months, others, eitherinadvertently or by design, do not treat interns asemployees. Instead, they are often labeled astrainees, assistants, or learners who receive little or no pay for the work they perform.

But what many job seekers and employers do notrecognize is that, unless a summer job meets certainconditions, for-profit companies must pay at leastthe minimum wage to their interns under state andfederal rules.

Federal CriteriaThe federal Fair Labor Standards Act (FLSA) definesan employee as “any individual employed by anemployer.” 29 U.S.C. § 203(e)(1). Similarly, theFLSA definition of employ includes “to suffer or permit to work.” In 1947, the U.S. Supreme Courtheld that the FLSA definition of employ does notmake all persons employees who, without anyexpress or implied compensation agreement, maywork for their own advantage on the premises ofanother. Walling v. Portland Terminal Co., 330 U.S.148. The Court pointed to six criteria that defineinterns or trainees:

• The training, even though it includes actual oper-ation of the facilities of the employer, is similar tothat which would be given in a vocational school;

• The training is for the benefit of the trainee;

• The trainees do not displace regular employeesbut work under close observation;

• The employer that provides the training derivesno immediate advantage from the activities of the trainees and, on occasion, the employer’s operations may actually be impeded;

• The trainees are not necessarily entitled to a job at the completion of the training period; and

• The employer and the trainee understand thattrainees are not entitled to wages for the timespent in training.

JACKSON LEWIS WEST COAST OFFICES:

LOS ANGELES OFFICE725 South Figueroa StreetSuite 2500Los Angeles, CA 90017(213) [email protected] H. Stone, Managing Partner

ORANGE COUNTY OFFICE5000 Birch StreetSuite 5000Newport Beach, CA 92660(949) 885-1360Frank M. Liberatore, Managing Partner

PORTLAND OFFICE806 SW Broadway4th FloorPortland, OR 97204(503) [email protected] Oborne, Managing Partner

SACRAMENTO OFFICE801 K StreetSuite 2300Sacramento, CA 95814(916) [email protected] S. Bradshaw, Managing Partner

SAN DIEGO OFFICE655 West BroadwaySuite 900San Diego, CA 92101Paul F. SorrentinoManaging Partner

SAN FRANCISCO OFFICE199 Fremont Street10th FloorSan Francisco, CA 94105(415) [email protected] Pattison, Managing Partner

SEATTLE OFFICEOne Union Square600 University StreetSuite 2900Seattle, WA 98101(206) [email protected] W. Hansen, Managing Partner

Summer InternshipsAre Not Free Labor

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HawaiiA student-learner is a student who is receivinginstruction in a public high school or licensed private high school and who is employed on a part-time basis pursuant to a bona fide vocationaltraining program. Employers must apply to theDepartment of Labor and Industrial Relations forthe employment of student-learners under specialcertificates authorizing employment at wages lowerthan the state minimum wage. The applicationmust be signed by the employer, student-learner,and appropriate school official. Hawaii RevisedStatutes, §§ 387-2, 387-9, 387-11.

NevadaUnder Nevada law, an “employee” is any personwho is employed by an employer, but does notinclude a worker who is under 18 years of age,employed by a nonprofit organization for after-school or summer employment or as a trainee for aperiod not longer than 90 days. Constitution of theState of Nevada, Article 15, Sec. 16.

Under Nevada Revised Statutes §§ 616A through616D, any person who is an apprentice or trainee isdeemed to be an employee of an apprenticeshipcommittee registered with the state apprenticeshipcouncil at a wage of $150 per month while he or she is attending a class for vocational training, orreceiving bona fide instruction as an apprentice ortrainee, under the direction of the apprenticeshipcommittee. However, an apprentice or trainee whois participating in a program of training andinstruction is deemed to be an employee of anemployer while the apprentice or trainee is perform-ing work for that employer and the employer is paying the apprentice or trainee a wage for the work performed.

UtahAn apprentice or trainee is allowed to work at lessthan the prevailing wage rate as long as he or she isregistered with an approved apprentice or traineeprogram, and he or she is not employed on a projectin excess of the allowable apprentice or trainee tojourneyman ratio. Utah applies the six-prong testunder the FLSA.

What Employers Should DoIt is important that employers who are planning tohire unpaid summer interns carefully review federaland their state’s criteria governing the characteristicsthat will deem a worker an employee. If an internshould have been paid, the employer may find itselfliable not only for wages but also for any overtimepay, employee benefits, meal and rest periods, andpenalties.

CaliforniaThe California Division of Labor StandardsEmployment (DLSE) applies an 11-prong test to determine whether an intern is or is not anemployee, the first six of which are virtually identi-cal to the Walling criteria (the DLSE uses “student”synonymously with “trainee”). However, theCalifornia criteria are more restrictive than the federal standards. They require stronger evidence of an educational tie-in. Under the California rules,a worker would be labeled an employee unless:

• Clinical training is part of an educational curriculum.

• The trainees or students do not receive employeebenefits.

• The training is general, so as to qualify thetrainees or students for work in any similar busi-ness, rather than designed specifically for a jobwith the employer offering the program. In otherwords, on completion of the program, the traineesor students must not be fully trained to work onlyfor the specific employer offering the program.

• The screening process for the program is not thesame as for employment and does not appear to be for that purpose, but involves only criteria rele-vant for admission to an independent educationalprogram.

• Advertisements for the program are couched clear-ly in terms of education or training, rather thanemployment, although the employer may indicatethat qualified graduates will be considered foremployment.

The California criteria, according to former DLSEChief Counsel H. Thomas Cadell, Jr., reflects thefact that the Division has “historically required thatthe training be an essential part of an establishedcourse of an accredited school” or part of training for a licensing requirement for the intern treatmentto apply.

ColoradoColorado Department of Labor and EmploymentMinimum Wage Order No. 25 provides that stu-dents employed in a work experience study programare exempt from all of the Order’s provisions.Consequently, the provisions of the FLSA apply todeterminations of whether a Colorado worker is anemployee.

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of payments equal to $600 or more); amount ofcontract (if applicable); contract expiration date (ifapplicable); and whether it is an ongoing contract.

Employers must report to EDD within 20 days ofeither making payments totaling $600 or more orentering into a contract for $600 or more with anindependent contractor in any calendar year,whichever is earlier. Employers must report eachindependent contractor once each year.

The EDD may assess a penalty of $24 for each failure to comply within the required time frames.Also, a penalty of $490 may be assessed for failureto report independent contractor information if thefailure is the result of conspiracy between theemployer and independent contractor.

The law’s aim is to increase the amount of child support collected. The information provided toEDD is cross-matched against a list of parents whoare delinquent in their child support obligations.Child support agencies are then able to locate theseparents to establish a payment order or enforce anexisting order.

Under Section 1088.8 of the CaliforniaUnemployment Insurance Code, any public or

private employer required to file a federal Form1099-MISC — for amounts the employer has paidfor an independent contractor’s services — mustreport the following to the state’s EmploymentDevelopment Department (EDD):

• The employer’s federal employer identification orSocial Security number; state employer accountnumber (if applicable); and business name,address, and telephone number; and

• The independent contractor’s first name, middleinitial, and last name; Social Security number;start date of contract (or, if no contract, the dates

Are You in Compliancewith California’sIndependent ContractorReporting Law?

On July 24, the federal minimum wage willincrease from $6.55 to $7.25 per hour. The

increase marks the third and final phase of a three-step increase in the minimum wage under legisla-tion signed on May 25, 2007.

The increase in the minimum wage applies to cov-ered nonexempt workers who, if entitled to over-time pay, must be compensated for the overtime at a

rate not less than one-and-one-half times the regularrate of pay after 40 hours of work in a workweek.

The accompanying chart shows minimum wagerates for selected states. These amounts apply gener-ally, but every state has exemptions for specific positions. In cases where an employee is subject toboth state and federal minimum wage laws, thehigher minimum wage applies.

State Current Minimum Scheduled Increase Notes

Alaska $7.15 $7.65 on 7/24/09 Future increases will keep the $7.75 on 1/1/10 minimum wage permanently 50 cents

higher than the federal standard.

Arizona $7.25 Annually Increases are based on a cost-of-living formula.

California $8.00 San Francisco minimum wage is $9.79.

Colorado $7.28 Annually Increases are based on a cost-of-living formula.

Hawaii $7.25

Nevada $5.85/$6.85 $6.55/$7.55 on 7/1/09 Lower minimum wages are effective for employees who receive employer-provided health benefits.

Utah $6.55 $7.25 on 7/24/09 Follows federal increases.

Federal Minimum Wage to Increase

“Tip pools” are arrangements in which servers, suchas waiters and waitresses, share their tips with oth-ers. According to the Fair Labor Standards Act(FLSA), occupations that have been recognized asfalling within the eligible category for tip poolinginclude waiters and waitresses, bellhops, counterpersonnel who serve customers, bussers, and servicebartenders. Also under FLSA, tipped employees maynot be required to share their tips with employees inoccupations that have not customarily and regularlyparticipated in tip pooling arrangements, such asjanitors, dishwashers, chefs or cooks, and laundryroom attendants.

In California, Labor Code § 351 governs tip pooling. Employers can institute involuntary tippooling, requiring that tips be distributed amongstaff that provide service in the restaurant. It hadbeen the Division of Labor Standards Enforcement’sposition that the tips be distributed among theemployees who provide “direct table service” only,such as servers, bussers, bartenders, and hosts/hostesses.

Two recent court decisions have expanded the distri-bution of pooled tips to workers who may or maynot directly serve patrons:

• A restaurant’s distributions from a tip pool toemployees who did not provide direct table service did not violate the state’s Labor Code.Budrow v. Dave & Busters of Calif., Inc., No.B205026 (Cal. Ct. App. Mar. 2, 2009).

• A restaurant’s mandatory tip pool, in whichservers shared their tips with bussers, bartenders,kitchen staff, and dishwashers, did not violate theLabor Code. Etheridge v. Reins Int’l Calif., Inc., No.B05005 (Cal. Ct. App. Mar. 30, 2009).

These cases indicate that employers have flexibilityin developing tip pooling policies suitable for theirbusinesses. As long as tip pools seek to equitablydistribute tips among workers within the chain ofservice — whether seen or unseen by patrons — andnot to benefit the employer, courts in Californiagenerally will be favorably disposed to the employer.

When structuring tip pooling policies, employersshould consult with their Jackson Lewis counsel toensure compliance with California and federal wageand hour laws.

Jackson Lewis is listed in the current edition of the prestigious Chambers USA

Guide, along with 42 of our attorneys.Chambers selects law firms and attorneys onthe basis of submissions put forward by legal practices, in-depth interviews, andits own resources. For the current edition,over 14,000 interviews were conducted bya team of 40 full-time researchers over aperiod of six months.

The following attorneys from our westcoast offices are listed in Chambers:

Amy J. Gittler (Phoenix, AZ)

Michael Griffin (Seattle, WA)

Barry Johnsrud (Seattle, WA)

Bradley W. Kampas (San Francisco, CA)

Gary Moss (Las Vegas, NV)

Charles W. Weese (Denver, CO)

Elayna Youchah (Las Vegas, NV)

John L. Zenor (Portland, OR)

Congratulations to all!

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California Tip PoolingRules Are Broadened 42 Jackson Lewis

Attorneys Selectedfor Chambers Guide

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Albany, NY(518) 434-1300

Albuquerque, NM(505) 878-0515

Atlanta, GA(404) 525-8200

Birmingham, AL(205) 332-3100

Boston, MA(617) 367-0025

Chicago, IL(312) 787-4949

Cleveland, OH(216) 750-0404

Dallas, TX(214) 520-2400

Denver, CO(303) 892-0404

Detroit, MI(248) 936-1900

Greenville, SC(864) 232-7000

Hartford, CT(860) 522-0404

Houston, TX(713) 650-0404

Jacksonville, FL(904) 638-2655

Las Vegas, NV(702) 921-2460

Long Island, NY(631) 247-0404

Los Angeles, CA(213) 689-0404

Memphis, TN(901) 462-2650

Miami, FL(305) 577-7600

Minneapolis, MN(612) 341-8131

Morristown, NJ(973) 538-6890

New Orleans, LA(504) 208-1755

New York, NY(212) 545-4000

Omaha, NE(402) 391-1991

Orange County, CA(949) 885-1360

Orlando, FL(407) 246-8440

Philadelphia, PA(267) 319-7802

Phoenix, AZ(602) 714-7044

Pittsburgh, PA(412) 232-0404

Portland, OR(503) 229-0404

Portsmouth, NH(603) 559-2700

Providence, RI(401) 490-3444

Raleigh-Durham, NC(919) 854-0044

Richmond, VA(804) 649-0404

Sacramento, CA(916) 341-0404

San Diego, CA(619) 573-4900

San Francisco, CA(415) 394-9400

Seattle, WA(206) 405-0404

Stamford, CT(203) 961-0404

Washington, D.C. Region (703) 483-8300

White Plains, NY(914) 328-0404

JACKSON LEWIS OFFICES:

Jackson Lewis LLP represents management exclusively in employment, labor, benefits andimmigration law and related litigation.

The firm has 41 offices and over 560 attorneys.

Jackson Lewis represents employers before state and federal courts and administrative agencies on a wide range of issues, including discrimination,wrongful discharge, wage/hour, affirmative action,immigration, and pension and benefits matters.Jackson Lewis negotiates collective bargainingagreements, participates in arbitration proceedingsand represents union-free and unionized employersbefore NLRB and other federal and state agencies.The firm counsels employers in matters involvingworkplace health and safety, family and medicalleaves and disabilities.

Your California supervisors must attend a California AB 1825 Compliance Training for Sexual Harassment Prevention every two years. We offer the training live at each of our California offices.

• September 24 • December 10 (Webinar)

Registration is $100 per session, per attendee. Registration begins at 9:30 am and the sessions run from 10:00 am to 12:00 noon.

For more details and to register online, go to www.jacksonlewis.com and click on the “Events” tab.

Register Your California Supervisors forCalifornia AB 1825 Compliance Training!

Mail regarding your subscription should be sent to [email protected] or

Jackson Lewis LLP59 Maiden Lane

39th Floor, New York, NY 10038Attn: Client Services.

Please include the title of this publication.