Sunday, September 7, 2014

McDonald’s labor decision is important for workers in the US

"Why the McDonald’s labor decision is important for workers in the US", 23 Aug 2014

Last month, the general counsel for the National Labor Relations Board (NLRB), which settles labor disputes in the U.S., decided for the first time that when considering labor complaints at McDonald’s franchises, it would deem the chain jointly responsible. A variety of observers have noted how this is an important breakthrough for fast food workers — one that prevents the multinational corporation from palming off labor abuses on bad-apple franchisees. But the implications are much wider than that...Today a huge number of in jobs that are temporary, freelance or outsourced...Our labor laws have yet to catch up to this new reality. Yet employees’ ability to form collective organizations, protect their rights and create fair working standards is directly connected to how we resolve this issue...The issue of employer of record — finding out which boss to hold accountable when there are multiple central in determining whether working people are able to organize in our new economy. If we are ever to bring legal protections in line with today’s economy, expanding on the McDonald’s decision and rejecting corporations’ efforts to evade responsibility for labor abuses must be a first step...As a next step, labor law needs to catch up to conditions that working people in the U.S. have put up with for decades.
Overtime and Construction Workers – What are the laws in Florida?

Construction workers in Florida are entitled to overtime, one-and-half times the regular wage, for all hours worked in excess of forty hours in a work week.
Common overtime issues include:

(1)  Failure to record all hours actually worked to include time spent working before or after the shift.
(2)  Shorting of hours by using terms such as down time or rain delay.
(3)  Failure to compensate for meal breaks where the employee is not completely relieved of all duties to enjoy uninterrupted time for the meal.
(4)  "Banking" of overtime hours or payment of overtime in the form of "comp time".
(5)  Failure to combine the hours worked for overtime purposes by an employee in more than one job classification for the same employer within the same workweek.
(6)  Failure to segregate and pay overtime hours on a workweek basis when employees are paid on a bi-weekly or semi-monthly basis.
(7)  Failure to pay for travel from shop to work-site and back.

Contractors and sub-contractors working at construction sites are usually paid according the contracts/bids they make to complete a part of the project or the job. Make sure you are being properly paid for ALL of the hours you work each week by keeping a separate record of time you clock in for work, your lunch breaks, and the time you clock out each day.

The exemptions provided by FLSA Section 13(a)(1) do not apply to manual laborers or other “blue collar” workers, including non-management construction workers, who perform work involving repetitive operations with their hands, physical skill and energy.

Such nonexempt “blue collar” employees gain the skills and knowledge required for performance of their routine manual and physical work through apprenticeships and on-the-job training, not through the prolonged course of specialized intellectual instruction required for exempt learned professional employees.

Non-management construction employees in production, maintenance and similar occupations such as carpenters, electricians, mechanics, plumbers, iron workers, craftsmen, operating engineers, longshoremen, construction workers and laborers are entitled to minimum wage and overtime premium pay under the FLSA, and are not exempt no matter how highly paid they might be.

 If you are not being properly paid, call us to discuss your options.
Updated 9/7/2014

Thursday, August 7, 2014

Is It Any Surprise That The Florida Restaurant & Lodging Association Supports Rick Scott?

Who They Endorse:

The main group that helps represent and promote Florida’s biggest money-making industry is the latest to endorse Governor Rick Scott. The Florida Restaurant and Lodging Association made the announcement at the group’s summit Wednesday in Tampa. And, Governor Scott says he couldn't be happier.

“Very appreciative of y’all’s endorsement. I’m going to continue to work every day to…hopefully this year, we’ll have 100 million tourists, and next year, we’ll keep growing every year over the next four and half years,” said Scott. 

What FRLA Does:

The association lobbies and hosts educational programs for its 10,000 members, which range from corporate chains to single-site independent restaurateurs and hotels. The group was created by the 2005 merger of the Florida Lodging Association into the Florida Restaurant Association. 

Last year FRLA supported a bill that if turned into law would have cut the minimum wage for tipped employees by 57% to $2.13/.hr from the current $4.91/hr.

The attempt to cut the minimum wage may have been the reason that long term member (1980's) Darden Restaurants (Capital Grill, Olive Garden etc.), a Fortune 500 company, resigned its seat on the FRLA Board and withdrew from the Association.

How Important is Restaurant and Lodging to Florida?

Florida's hospitality industry represents:

A $71.8 billion industry

23% of Florida’s economy

$4.3 billion in sales tax revenue

More than 1,000,000 employees – Florida’s largest employer

FRLA = Rick Scott

As far as I know, Rick Scott never waited tables and has zero idea how hard service industry employees work. I am voting for Charlie Crist - in fact - I have sent him money for his campaign. People of the state of Florida do not pay state income tax because the state collects over $4 billion in sales tax revenue - because over 1,000,000 service employees who deserve more than $2.13/hr.

Wednesday, July 23, 2014

Why Waiters Only Make $2 An Hour, Explained By A Cartoon I Wish I Could Strangle

While thousands of fast-food workers were preparing to walk off their jobs earlier this summer to seek raises to $15 an hour, the industry’s corporate lobbyist, the National Restaurant Association, was celebrating a string of political victories blocking state minimum wage increases and preempting local sick day laws.

In June, the NRA boasted that its lobbyists had stopped minimum wage increases in 27 out of 29 states in 2013. In Connecticut, which increased its state minimum wage, a raise in the base pay for tipped workers such as waitresses and bartenders vanished in the final bill. A similar scenario unfolded in New York State: It increased its minimum wage, but the NRA’s last-minute lobbying derailed raising the pre-tip wage at restaurants and bars. The deals came despite polls showing 80 percent support for raising the minimum wage.

The NRA’s lobbying didn’t stop there. It also told members that it blocked a dozen states this year from passing laws that would require earned paid sick leave, which is what New York City and Portland, Oregon adopted. Meanwhile, it boasted that six states, including Florida, passed NRA-backed laws that preemptively ban localities from granting earned and paid employee sick time.

“These are horrible things, but there are amazing things that are happening to change it,” said Saru Jayaraman, co-director and co-founder of the Restaurant Opportunities Centers United (ROC), which has been working a dozen years to slowly change the industry’s exploitive business model and labor practices. “And there will be increasingly important stuff coming up.”

Sunday, February 23, 2014

Servers Fight Back Against Wage and Tip Theft

NEW YORK (Main Street) — Philadelphia is a legendary sports town with equally famous fans known for being loud, proud and rowdy. But one of Philly's most popular sports bars has committed a personal foul and is being fined half the distance to the goal. Chickie's & Pete's has been slapped with a multi-million judgment for requiring servers to contribute to a "tip pool" and violating federal minimum wage, overtime and record-keeping requirements.

The company and its owner, Peter Ciarrocchi, Jr., have agreed to pay more than $6.8 million in back wages and penalties to 1,159 employees at nine of the company's locations, plus a $50,000 civil money penalty. Chickie's and Pete's is also settling private lawsuits alleging unfair pay practices for nearly $1.7 million.

Known as "Pete's Tax," the tip-sharing arrangement required servers to contribute 2%-4% of their daily table sales to the pool. Payment was required to be given to the manager, in cash, at the end of each shift. Tips placed on credit cards were included, so many servers had to use their own cash, borrow it from another server or withdraw the cash from a nearby ATM to cover their contribution. The owner kept 60% of the total.

In addition, most servers and bartenders were paid a flat rate of $15 per shift – far short of the minimum tip wage of $2.13 per hour. Workers weren't paid overtime or for time spent in mandatory meetings and training – and were required to buy their own uniforms.

Under the Fair Labor Standards Act, tips are the property of the employee who receives them; however, an employer that claims a tip credit is required to pay a tipped employee only $2.13 an hour in direct wages, provided that amount plus tips received equals at least the federal minimum wage of $7.25 an hour. If they don't, the employer must make up the difference.

The federal minimum wage of $7.25 per hour was last increased in 2009 and the federal tip credit's cash wage requirement of $2.13 has not been increased since 1991.

"It's unconscionable that under federal law tipped workers have been frozen at $2.13 an hour for more than two decades," Secretary of Labor Thomas E. Perez said at a recent event in Columbus, Ohio. "The tipped workers I talk to tell me that some weeks, the amount in their paycheck after taxes are taken out is zero. So they're relying entirely on cash tips to survive. One out of every seven of them is on food stamps, and they live in poverty at three times the rate of the entire U.S. workforce. Is this any way to honor the dignity of work?"

Under the provisions of the consent judgment filed in U.S. District Court for the Eastern District of Pennsylvania, and subject to court approval, the company will pay minimum wage and overtime back wages and is required to return the improperly retained tips to the servers, as well as pay liquidated damages.

"When employers exploit tipped workers, they not only harm their employees who are working hard to earn a living, but also take advantage of the trust of their customers," said Laura Fortman, principal deputy administrator for the department's Wage and Hour Division. "Customers might not realize it, but their tips frequently are paying part of their servers' wages, not just giving them a little extra to go with their pay. Chickie's and Pete's behavior is troubling because they both unlawfully took tips from their workers and failed to pay them even the $2.13 per hour the law requires when an employer takes a tip credit."

—Written by Hal M. Bundrick for MainStreet

Wednesday, November 6, 2013

Pay the Workers! Moving in the Right Direction but not there Yet!

Florida's current $7.79 hourly minimum wage rate will increase to $7.93 effective January 1, 2014.  Florida's minimum wage law requires the Florida Department of Economic Opportunity to recalculate Florida's minimum wage annually based upon the increase in the federal Consumer Price Index for Urban Earners and Clerical Workers in the Southern Region. This minimum wage increase applies to all employees who are covered by the federal Fair Labor Standards Act.

This hourly increase also impacts wages paid to tipped employees working in Florida. For tipped employees who receive tips as part of their compensation under the FLSA's tip credit rules, employers may count those tips as wages under Florida's minimum wage law. Employers may take a credit of up to $3.02 per hour for all tipped employees.  However, tipped employees must also receive a direct hourly wage. Effective January 1, 2014, this direct hourly wage must be at least $4.91 – calculated as Florida's minimum wage ($7.93) minus the permissible tip credit ($3.02).

Saturday, September 7, 2013

Tips, Automatic Gratuities, Service Charges - And Now The IRS?

An updated tax rule is causing restaurants to rethink the practice of adding automatic tips to the tabs of large parties.
Starting in January, the Internal Revenue Service will begin classifying those automatic gratuities as service charges—which it treats as regular wages, subject to payroll tax withholding—instead of tips, which restaurants leave up to the employees to report as income.
The change would mean more paperwork and added costs for the restaurants—and a potential financial hit for waiters and waitresses who live on their tips but don't always report them fully.
Darden Restaurants Inc., owner of Olive Garden, LongHorn Steakhouse and Red Lobster, has long included automatic 18% tips on the bill for parties of eight or more at its more than 2,100 restaurants, but is experimenting with eliminating them because of the IRS ruling, said a spokesman.
The chain in July stopped automatic tips at 100 restaurants in four cities, where it is testing a new system in which the restaurants include three suggested tip amounts, calculating for the customer the total with a 15%, 18% or 20% tip on all bills, regardless of party size. Diners can opt to tip more or less than the suggested amounts, or to not tip. Depending on how patrons react and how well the new software system works, Darden may switch to such suggested tips at all of its restaurants. A spokesman said the company will decide by year-end.
Texas Roadhouse Inc., which includes a tip of 15% for parties of eight or more at many of its more than 390 restaurants, is planning to phase out automatic gratuities by the end of the year, a spokesman said.
"I think the vast majority of restaurant owners will discontinue the practice," says Denise Wheeler, an employment attorney in Fort Myers, Fla., who represents several restaurant chains.
The change will complicate payroll accounting for restaurants that stick with automatic tips, because they will need to factor those tips into pay, meaning hourly pay rates—could vary day to day depending on how many large parties are served.
Restaurants are required to report to the IRS what its employees report receiving for tips and to pay Medicare and Social Security taxes on those amounts. Restaurants are eligible for an income-tax credit for some or all of those payments, but service charges aren't eligible, according to Marianna Dyson, a payroll tax attorney in Washington, D.C., who represents restaurant chains.
The change comes amid increasing costs and record-keeping requirements for restaurants. In January, restaurants with 50 or more full-time workers will be required to offer health coverage to employees working 30 or more hours a week, though penalties don't begin until 2015.
Restaurants adopted automatic gratuities to help ensure that their servers—whose tips supplement a salary that is often less than the federal minimum wage of $7.25 an hour—weren't stiffed on large tabs. But many servers are likely to support dropping the practice because they don't like the idea of their tips being treated as wages, which requires upfront withholding of federal taxes, and means they won't see that tip money until payday.
"I don't want my tips to be on my paycheck as a wage. I like to get my tips at the end of my shift because I know what I'm getting right away," says Tamie Cordoba, a 54-year-old server at a LongHorn Steakhouse in Jacksonville, Fla.
Ms. Cordoba makes base wages of $4.25 an hour, or $144.50 to $161.50 for her average workweek of 34 to 38 hours. She said she usually makes an additional $500 to $650 a week in tips. Since she never knows exactly how much she will get each week in tips, getting paid at the end of each shift helps her budget, Ms. Cordoba said. "In this industry, that's what we live on. If I had to wait two weeks I don't know how I'd survive."
The Cheesecake Factory Inc. suggests an 18% gratuity for parties of six or more, says a spokeswoman, but "We advise our guests that leaving a gratuity is always discretionary." She said the company is now reviewing its policy.
The IRS ruling was issued in 2012 to clarify and update earlier tax guidance on tips, which didn't spell out how automatic tips were to be treated. Restaurants persuaded the agency to delay implementation until next year.
In a statement, the IRS said it noticed an increase in the use of "auto-gratuities" and that it believed "additional clarification in this area would be in the best interest of tax administration."
The updated rule says the automatic tips are service charges because they aren't voluntary. In a question-and-answer section of the ruling, the IRS provided an example of a restaurant suggesting different tip amounts, and said that practice isn't subject to federal withholdings because the customer is still free to choose whether and how much to tip.
Still, the ruling has caused some confusion. Some restaurants insert an amount on the tip line and then remind guests on the check that they are free to adjust that amount up or down. Ms. Dyson, the payroll tax attorney, said that practice could come under scrutiny from the IRS. "How far can you go before the IRS says that looks like a service charge?" Ms. Dyson says.