On March 17, 2025, the New Jersey Supreme Court unanimously held in Musker v. Suuchi that commissions are included in the definition of “wages” under New Jersey’s Wage Payment Law (“WPL”).  Wages under the WPL are defined as “direct monetary compensation for labor or services rendered by an employee, where the amount is determined on a time, task, piece or commission basis.”  The trial and appellate courts held that commissions were a “supplementary incentive,” which is excluded from the definition of wages under the WPL. Supplementary incentives were described by the court as additional “compensation that motivates employees to do something above and beyond their labor or services.”

Continue Reading The New Jersey Supreme Court Finds that Commissions Are Wages Under the New Jersey Wage Payment Law

On February 12, 2025, the U.S. District Court for the District of Oregon issued an important decision in Porteous v. Flowers Foods, Inc. regarding the enforceability of class and collective action waivers contained in otherwise unenforceable arbitration agreements.

Continue Reading Federal District Court Says Class and Collective Action Waiver Survives Unenforceable Arbitration Agreement

On February 3, 2025, President Trump appointed William B. Cowen as Acting General Counsel for the National Labor Relations Board (NLRB). Cowen has previously served in a variety of roles throughout the agency, including most recently as Regional Director for the Los Angeles Regional Office and previously as the NLRB’s Solicitor and an NLRB member. Cowen fills the role left vacant by President Trump’s firings of both Jennifer Abruzzo, the NLRB General Counsel appointed by President Biden, and Jessica Rutter, who served as Abruzzo’s Deputy General Counsel and took over as Acting General Counsel when Abruzzo was fired.

Continue Reading Acting NLRB General Counsel Pulls Back Memoranda

Late on Monday, January 27, President Trump said “you’re fired” to two key National Labor Relations Board (NLRB) officials. The dismissal of NLRB General Counsel Jennifer Abruzzo was widely expected and follows precedent set by President Biden when he fired Peter Robb, the NLRB General Counsel installed during the first Trump administration, on his first day in office. President Biden’s termination of Robb was upheld by various federal circuit courts. See Rieth-Riley Constr. Co. v. NLRB, 114 F.4th 519 (6th Cir. 2024) (holding the president can remove the NLRB General Counsel at will).

Continue Reading Trump Tests Limits of Authority to Shape National Labor Relations Board

As we discussed in a previous post (linked here), many employers have recordkeeping and other annual compliance obligations under Occupational Health and Safety Administration (OSHA) regulations. Employers have a February 1, 2025, deadline to complete, certify and post a Summary of Work-Related Injuries and Illnesses (i.e., OSHA Form 300-A) that occurred last year. The summary must remain posted through April 30, 2025.

Continue Reading Reminder: Approaching Deadline to Post Last Year’s Work-Related Injuries and Illnesses

On December 31, 2024, the California Chamber of Commerce and California Restaurant Association (CRA) filed a complaint in federal court seeking to enjoin enforcement of Senate Bill (S.B.) 399, signed into law by Governor Gavin Newsom in September of 2024.

Continue Reading Recent Litigation in California Challenges New Captive Audience Meeting Bill

On December 31, 2024, Service Employees International Union, Local 560 (SEIU), the union seeking to represent the men’s basketball team at Dartmouth College, withdrew its petition to the National Labor Relations Board (NLRB), effectively ending its effort to become the first labor organization to unionize a collegiate athletic program.

Continue Reading You Can’t Miss a Shot If You Don’t Show Up to the Game: Union Pulls Petition to Unionize Dartmouth Basketball Team

Employers need to be prepared to post required workplace injury and illness information by February 1, 2025.

Pursuant to Occupational Safety and Health Administration (OSHA) regulations, unless an industry-specific exemption applies, employers with 10 or more employees must keep a Log of Work-Related Injuries and Illnesses (i.e., OSHA Form 300) and must complete an Injury and Illness Incident Report (i.e., OSHA Form 301) for each recordable injury or illness.

Continue Reading Approaching Deadline to Post Last Year’s Work-Related Injuries and Illnesses
Coffee shop customer places cash in a tip jar
Unrecognizable male coffee shop customer places cash into a tip jar.

In August 2024, we reported on the highly anticipated opinion in Restaurant Law Center v. U.S. Department of Labor, 115 F.4th 396 (5th Cir. 2024), in which the Fifth Circuit vacated the 2021 Dual Jobs Final Rule as arbitrary, capricious, and contrary to the text of the Fair Labor Standards Act (FLSA). In light of that decision, the U.S. Department of Labor (DOL) recently published a new Final Rule eliminating the 2021 Dual Jobs Final Rule—commonly referred to as the “80/20/30” rule—from the Code of Federal Regulations (CFR). This is a technical amendment that reinstates the DOL’s original dual jobs regulation and restores the CFR to its pre-2021 language based on the 1967 dual jobs regulation.

Continue Reading DOL Returns to Prior Dual Jobs Regulation for Tipped Employees

On December 18, 2024, the DOL issued opinion letter FLSA2024-02, reaffirming its position that managers and supervisors are prohibited from participating in tip pools under any circumstances.  

Tip pooling is a common practice in the hospitality industry where employees contribute any tips received into a pool at the end of a shift and then, at some point thereafter, divide the tips amongst those participating in the pool. This is a permissible practice under federal law—albeit, with some exceptions. One notable exception is that, under the Fair Labor Standards Act (FLSA), “[a]n employer may not keep tips received by its employees for any purposes, including allowing managers or supervisors to keep any portion of employees’ tips.” 29 U.S.C. § 203(m)(2)(B). That is true regardless of whether the employer pays its tipped employees at least the federal minimum wage of $7.25/hour and takes no tip credit. Id.; see 29 C.F.R. § 531.54(b); DOL Fact Sheet #15: Tipped Employees Under the Fair Labor Standards Act (FLSA).

In its recent opinion letter, the DOL was asked whether “an individual who holds at least a 20-percent equity interest in the business and manages and supervises the bartenders,” but “also tends bar to ‘regularly engage with the customers,’” could participate in a tip pool along with other bartenders who receive tips but for whom the employer does not take a tip credit. The DOL stated that the individual could receive and keep tips he receives from a customer for service he “directly and solely provides.” However, the individual cannot keep any portion of tips received “if it is not possible to attribute a tip solely to the service the individual provides”—and therefore, the individual may not participate in a tipped pool with other bartenders.

The DOL’s rationale is simple: as an owner of the business and someone who is “actively engaged in managing the bartenders,” the individual qualifies as a “manager or supervisor” under 29 U.S.C. § 203(m)(2)(B). Accordingly, under no circumstances may the individual retain any portion of other employees’ tips, whether directly or through a tip pool.

The DOL’s conclusion in the letter is not surprising. It is, however, a good reminder to employers that (1) managers or supervisors should never retain any portion of other employees’ tips, even if in good faith, and (2) any tip-related practices should always be reviewed in connection with applicable federal, state, and local law to ensure compliance.