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.

On December 10, 2024, the National Labor Relations Board (NLRB or “the Board”) took advantage of its Democratic majority in the waning days of the Biden administration to issue its decision in Endurance Environmental Solutions, LLC, and overturn a Trump-era standard that had strengthened management rights clauses in collective bargaining agreements.

Continue Reading NLRB Weakens Ability of Employers to Rely on Management Rights Clauses in Collective Bargaining Agreements . . . For Now

Recognizing that healthcare providers often play a key role in the reasonable accommodation process, the United States Equal Employment Opportunity Commission (“EEOC”) issued guidance on December 18, 2024, explaining how healthcare providers can help patients obtain an accommodation under the Pregnant Workers Fairness Act (“PWFA”).  The guidance, “Helping Patients Deal with Pregnancy – and Childbirth – related Limitations and Restrictions at Work Under the Pregnant Workers Fairness Act,” outlines ways providers can inform their patients about the PWFA, suggest appropriate potential accommodations, and provide effective supporting medical documentation.

Continue Reading EEOC Issues PWFA Guidance for Healthcare Providers

Amendments to the Illinois Wage Payment and Collection Act (IWPCA) setting forth new pay stub requirements for employers take effect on January 1, 2025. Here are the highlights.


What Is a “Pay Stub.”


The IWPCA now specifically defines a “pay stub” as an itemized statement reflecting an employee’s:
• hours worked
• rate of pay
• overtime pay
• overtime hours worked
• gross wages earned
• deductions made from the employee’s wages
• total wages and deductions for the year


New Employer Pay Stub Obligations.


The IWPCA now requires employers to:
• Provide an electronic or physical pay stub containing the above information to employees each pay period.
• Maintain copies of employees’ pay stubs for at least three years after the date of payment, even if the employment relationship ends before the three-year period has run.
• Provide a current or former employee copies of his or her pay stubs within 21 days of that employee’s request.


Notably, if an employer furnishes electronic pay stubs in a manner that does not allow a former employee to access them for at least a full year after separation, the employer must (1) offer to provide a record of all pay stubs from the year preceding the date of separation by the end of the outgoing employee’s final pay period; and (2) maintain a written record of the date on which its offer was made and how the employee responded.


Limits on Employee Pay Stub Requests.


An employee’s right to request pay stub copies is not unlimited under the IWPCA:
• An employer may require that requests for copies of pay stubs be submitted in writing.
• An employer is not required to grant a current or former employee’s request more than twice in a 12-month period.
• An employer is not required to grant a former employee’s request more than one year after the date of separation.


Potential Penalties.


An employer who fails to comply with the IWPCA may be subject to a civil penalty of up to $500 per violation. Such penalties are in addition to any damages or attorney’s fees and costs for other wage-related violations of the IWPCA.
The amendments do not specify whether individual employees have a private right of action for a violation of the new pay stub requirements. Nor do the amendments specify whether the civil penalties may be enforced retroactively.


Next Steps for Employers.


By January 1, 2025, Illinois employers should, at minimum:
• Ensure pay stubs contain all required information.
• Train payroll personnel to effectively respond to employee pay stub requests.
• Verify that recordkeeping procedures comply with the three-year retention period.
• Verify whether pay stubs provided electronically may be accessed by former employees for one year after separation, and if not, establish a process for offering them to employees upon separation.


If you have any questions about the topics discussed in this article, please contact James P. Looby at jlooby@vedderprice.com, Michael D. Considine at mconsidine@vedderprice.com or any Vedder Price attorney with whom you have worked.

Holding Paycheck

Under the Illinois Wage Payment and Collection Act (IWPCA), an employee may file suit for compensation owed “pursuant to an employment contract or agreement.”  820 ILCS 115/2. Courts have taken different approaches regarding what constitutes an agreement under the IWPCA, and prior to October 2024, the Seventh Circuit had not opined as to whether boilerplate disclaimer language in an incentive compensation plan prevents an agreement under the IWPCA from ever being formed. 

But, on October 4, 2024, the U.S. Court of Appeals for the Seventh Circuit weighed in.  As held in Case No. 23-3209 the Court found that “boilerplate disclaimer language” in an incentive compensation plan does not prevent the formation of an “agreement” between an employee and his employer for purposes of a claim under the IWPCA.  Santanu Das v. Tata Consultancy Services Ltd., No. 23-3209(7th Cir. 2024). This decision is significant because it puts Illinois employers on notice that employees may have a claim for unpaid compensation under the IWPCA even if the employer expressly disclaims that it ever agreed to pay such compensation.

To learn more about the decision and how it may affect your company, please read the full article here.

Occupation.
Occupation job search employment issues job classified ad unemployment searching

On September 26, 2024, the New Jersey Legislature passed Senate Bill 2310. This new law requires New Jersey employers to include certain information about compensation and benefits in both internal and external job postings.  Governor Murphy has 45 days (i.e., until November 10, 2024) to sign the bill into law, and, once signed, it will go into effect seven months later.

Continue Reading New Jersey Passes Wage Transparency Law

In a recent decision, the Colorado Supreme Court reminded employers that state law often differs from federal law when it comes to properly paying employers. One such area involves calculating the regular rate of pay for purposes of determining overtime compensation owed to employees who work more than 40 hours in a workweek.

Continue Reading Colorado Requires Holiday Incentive Pay to Be Included in the Regular Rate of Pay

On September 4, 2024, Governor Kathy Hochul signed S8358C, the New York Retail Worker Safety Act (RWSA), into law. Through the RWSA, New York state seeks to address growing threats of workplace violence and fears among retail workers regarding their safety in the workplace. New York joins a handful of other states, including California, which have passed similar legislation.

Continue Reading New York Governor Signs Legislation to Protect Retail Workers from Workplace Violence