Treatment Of Tipped Employees Under Minimum Wage Laws

Everyone knows that the current minimum wage under state and federal law is $7.25 an hour.  That’s an easy rule to apply to most employees.  But it can become complicated for workers who customarily and regularly receive tips and are thus considered “tipped employees.”  The rules change rather considerably for tipped employees.  Treatment of tipped employees for purposes of state and federal minimum wages contains a number of nuances, so I’m painting with very broad brushstrokes here.

It’s important to note that minimum wage is governed by both federal law and, in some instances, state law.  Federal law is always the same and applies to every state, but the states are free to enact minimum wage laws that provide a higher rate of pay than than mandated by federal law.  For example, Iowa requires that tipped employees be paid at least $4.35 an hour, while the federal minimum wage is $2.13 for tipped workers.  Employers must comply with the higher minimum wage, so Iowa employers must pay tipped employees at least $4.35 an hour, not the $2.13 minimum wage under federal law for tipped employees.

Tipped workers must still be paid the equivalent of the $7.25 minimum wage.  It’s just that employers of tipped employees get to count employees’ tips as a “tip credit” toward the mandatory minimum of $7.25 an hour.  Here’s how the tip credit system works:  Tipped employees are guaranteed at least $4.35 an hour.  In addition to the $4.35 minimum wage for tipped employees, tipped workers also get to keep their tips.  Employers get to count the tips towards the $7.25 minimum wage as a “tip credit.”    The $4.35 minimum wage for tipped employees plus the tips must equal the standard $7.25 per hour minimum wage, or the employer has to make up the difference by paying the tipped employee additional wages sufficient to equal $7.25 an hour.

Minimum wage for tipped employees can become really convoluted for jobs that require tipped employees to occasionally do non-tipped work, like a restaurant that requires its servers to assist with opening, closing, cleaning, and preparatory activities for which there are no customers and thus no possibility of receiving tips.  Whether the employer can still pay employees the tipped rate of $4.35 during such activities, or whether the standard $7.25 rate for non-tipped employees applies, depends on the facts of each case.  Federal and state law can sometimes mandate that employers who require employees to work “dual jobs” pay for non-tipped labor at the $7.25 non-tipped rate.

Minimum wage cases require analysis of federal and state statutes, U.S. Department of Labor and Iowa Department of Labor regulations, and court decisions.  I can help you with any employment law or labor law questions that you might have.  Please feel free to contact me for a free initial consultation about employment law or labor law.

 

Kawasaki USA Recalls Recreational Off-Highway Vehicles Due to Injury, Death Hazard

Name of Product: Teryx Recreational Off-Highway Vehicles

Units: About 2,000

Distributor: Kawasaki Motors Corp., U.S.A., of Irvine, Calif.

Hazard: The recalled products have been incorrectly labeled as having a higher occupant capacity than is safe. Operating the vehicle with additional occupants creates an injury or death hazard.

Incidents/Injuries: None

Description: The recalled vehicles are model year 2012 Kawasaki four-wheel recreational off-highway vehicles with side-by-side seating for two people, automobile style controls, with model types Teryx 750 FI 4×4, Teryx 750 FI 4×4 LE, Teryx 750 FI 750 4×4 LE SGE and Teryx 750 FI 4×4 Sport. The model type is printed on the hood of the vehicles. The recalled vehicles are available in the solid colors green, red, grey, silver, black and camouflage (khaki).

Sold at: Kawasaki dealers nationwide from August 2011 through March 2012 for between $10,600 and $12,000.

Manufactured in: United States

Remedy: Consumers will receive a replacement glove compartment cover stating the correct occupant capacity in the mail. They can install it themselves with included instructions or contact their Kawasaki dealer to schedule a free installation.

Consumer Contact: For more information, contact Kawasaki between 8 a.m. through 5 p.m. Monday through Friday toll-free at (800) 954-7228 or visit the firm’s website at www.kawasaki.com. Kawasaki is contacting its customers directly.

Source:  http://www.cpsc.gov/cpscpub/prerel/prhtml12/12731.html

Please feel free to contact me if you have a personal injury or wrongful death or products liability matter that you would like to discuss.  I’ll be happy to see if I can give you a hand.

When Is A Real Estate Commission Earned?

Real estate agents are generally paid on a commission basis.  That usually works well, but there can also be a few problem areas.  One potential problem can occur when a real estate agent’s employment is terminated for some reason.  A dispute might then arise over whether the agent “earned” and was thus entitled to a commission for a sale that was in the works at the time the agent’s employment ended but had not yet closed.

There are at least three different methods of earning a commission under an agency contract for sale of real estate.  First, by effecting a binding contract of sale under authority given to the agent to make such a contract for the principal.  Second, by producing a purchaser to whom a sale is in fact made.  Third, by producing a purchaser ready, willing and able to buy on terms specified in the agency agreement.  These are the three common instances in which a real estate salesperson earns a commission before the transaction actually closes.

Please note that Iowa law draws a distinction between the point in time when a commission is earned and when it is actually paid.  Those are separate events.  So a real estate agent’s contract may state that the commission is not owed until the sale closes and money is received, but that is not the same as the agent earning the commission as soon as the sale process is begun between the buyer and the seller.  Most often, a real estate agent earns a commission as soon as the purchase agreement is signed, then is paid at closing when the sale money actually changes hands between the parties to the transaction.  But that standard arrangement can always be modified by express agreement between the real estate agent and the agent’s brokerage or clients.

I can help you with any employment law or labor law questions that you might have.  Please feel free to contact me for a free initial consultation about employment law or labor law.

Gas Grill Recall

Name of Product: Gas Grills

Units: About 87,600 in the U.S., 1,400 in Canada

Importer: One World Technologies Inc. of Anderson, S.C.

Hazard: The regulator on the grill can leak propane gas, which can ignite, posing fire and burn hazard to consumers.

Incidents/Injuries: The firm is aware of 569 reports of regulators leaking propane gas. No injuries have been reported.

Description: This recall involves STOK Island and STOK Quattro gas grills. The STOK Island has a round grill base and two burners. “STOK” is written on the grill cover and a label on the bottom of the grill stand. The STOK Quattro gas grill is a rectangular, four-burner grill. “STOK” is printed on the grill’s lid. To identify whether a specific Island or Quattro grill is included in this recall, you will need to look at the grill’s regulator. The recalled grills have regulators on them with the model number “AZF” on the front and a date code between 1046 and 1143 on the back of the regulator.

Sold at: Home Depot stores nationwide and in Canada and Direct Tools Factory Outlet stores nationwide from March 2011 through February 2012 for between $79 and $350.

Manufactured in: China

Remedy: Consumers should immediately stop using the recalled grills and contact One World Technologies for a free replacement gas regulator for the grill.

Consumer Contact: For additional information, please contact One World Technologies toll-free at (800) 867-9624 between 8 a.m. through 5 p.m. ET Monday through Friday, or visit the firm’s website at www.stokgrills.com

Source:  http://www.cpsc.gov/cpscpub/prerel/prhtml12/12152.html

Please feel free to contact me if you have a personal injury wrongful death or products liability matter that you would like to discuss.  I’ll be happy to see if I can give you a hand.

Overtime Rights Of Salespersons

One of the wage and hour problem areas that trips up employers concerns salespeople.  The FLSA makes a distinction between inside salespeople and what it refers to as the “outside salesman.”   It’s an important distinction because inside salespeople are entitled to overtime and outside salespeople are not.

Here’s how you can know the difference.  An outside salesperson is someone whose primary duty is making sales and who is regularly engaged away from the employer’s place of business, i.e., out in the field, making sales.  Resolution of these cases often comes down to determining whether outside sales is the employee’s primary duty.

Determining a salesperson’s primary duty can be tricky.  For example, a salesperson may spend some of her time cold calling and fielding calls from potential customers while at the employer’s place of business and part of her time out in the field.  Which is her primary job duty?  Generally, courts will look at where the salesperson spends more than 50% of her time.  If it’s out in the field, she will usually be considered an outside salesperson and will not be entitled to overtime.

Other factors a court will look at will be the relative freedom from direct supervision the salesperson has (less supervision weighs in favor of a finding the employee is an outside salesperson), the relative importance of the outside sales duties as compared with the inside job duties (the more relative importance of the outside duties, the more likely the employee is a an outside salesperson) and the relationship between the salesperson’s compensation and that paid to the employees performing the same non-outside sales duties as the salesperson (if the salesperson’s pay is substantially higher it is more likely she will be found to be an outside salesperson).

So, if you are in sales, you may be entitled to overtime.   Overtime cases require analysis of federal statutes, U.S. Department of Labor regulations, and court decisions.  I can help you with any employment law or labor law questions that you might have.  Please feel free to contact me for a free initial consultation about employment law or labor law.

Several New Recalls Involving Bicycles And Bicycle Equipment

Just in time for the warm weather months, the U.S. Consumer Products Safety Commission has announced several recalls concerning bicycles or bicycle equipment:

Name of Product: GT, Giant and Trek Bicycles with SR Suntour Suspension Forks

Units: About 17,000

Manufacturer: SR Suntour, of Taiwan and Vancouver, Wash.

Hazard: The suspension fork’s internal support tubes can break and cause the rider to lose control, fall and crash.

Incidents/Injuries: SR Suntour has received 12 reports of incidents with the suspension forks, including two injuries involving a laceration and a chipped tooth.

Description: This recall involves the following GT, Giant and Trek bicycles with SR Suntour suspension forks. “SR Suntour” and the date code are printed on the back of the fork crown.

Bicycles	Model Years	Model Name	SR Suntour Suspension Fork Date Codes
Giant	2011-2012	Revel 1 Revel 1W	CK110301 through CK110731
GT	2012	Avalanche 4.0 Avalanche 4.0 GTW
Trek	2012	3700D 3900D

Sold at: Specialty bicycle stores nationwide from April 2011 through March 2012 for between $400 and $600.

Manufactured in: China

Remedy: Consumers should stop using bicycles with these forks immediately and return the bicycles to any authorized GT, Giant or Trek dealer for a free repair.

Consumer Contact: For additional information, please contact SR Suntour toll-free at (855) 205-2453 anytime, or visit the firm’s website at www.srsuntour-cycling.com.

Source:  http://www.cpsc.gov/cpscpub/prerel/prhtml12/12149.html

Name of Product: 2010 through 2012 Model Year Bicycles

Units: About 4,100

Importer: Public Bikes Inc. of San Francisco

Manufacturer: Wellgo Pedals Corp. Taiwan (pedals)

Hazard: The pedals can crack and break, posing a fall hazard to the rider.

Incidents/Injuries: Public Bikes has received 24 reports of pedals cracking. No injuries have been reported.

Description: This recall involves 18 models of women’s and men’s Public Bikes. The bicycles are various colors and sizes. “Public” or “Publicbikes.com” is printed on either the bicycle chain guard or the rear fender. The bicycles have a metal “badge” at the top of the down tube with a number stamped on it. Recalled badge numbers are 1-5843, 5845, 12560, 20743 and 20757. The “Apple” model, which has no badge, is also included. The word “Wellgo” is embossed on both the top and bottom of the pedals. All bicycles with Wellgo pedals are included in this recall.

Sold at: Public Bikes & Gear in San Francisco and other Public Bikes dealers in 16 states nationwide and publicbikes.com from April 2010 through January 2012 for between $500 and $1,250.

Manufactured in: Taiwan

Remedy: Consumers should immediately stop riding the recalled bicycles and contact Public Bikes or an authorized Public Bikes dealer for free replacement pedals. The recalled pedals have a black spindle, the replacement pedal spindles are chrome.

Consumer Contact: For additional information, please contact Public Bikes toll-free at (855) 840-1400 between 9 a.m. and 4 p.m. PT Monday through Friday or visit the firm’s website at www.publicbikes.com.

Source:  http://www.cpsc.gov/cpscpub/prerel/prhtml12/12145.html

Name of Product: Topeak Babyseat™ II Bicycle Carrier Seats

Units: About 40,000

Importer: Todson Inc., of North Attleboro, Mass.

Hazard: A child can place his or her fingers in the opening at the grab bar’s hinge mechanism. When the consumer lifts the grab bar to remove the child from the seat, the child’s fingertips can be caught in the hinge mechanism, posing a laceration and fingertip amputation hazard to the child.

Incidents/Injuries: The firm has received two reports of incidents including near amputations that resulted in stitches and a crushed finger.

Description: This recall involves Topeak Babyseat II bicycle carrier seats with model numbers TCS2100, TCS2101 and TCS2102. Model numbers are printed on the product’s packaging. The gray, plastic Babyseats were sold in three styles: Babyseat, Babyseat with disc brake compatible rack and Babyseat with non-disc brake compatible rack. The racks are used to mount the seat to the bicycle. “Topeak” is embossed on the back of the seat and is also printed on a black foam protector that covers the grab bar. A red locking lever on the side of the blue grab bar locks the bar into place.

Sold at: J&B Imports, REI, Action and Hawley, independent bicycle dealers, distributors and other retail stores nationwide and online at REI.com from January 2009 through April 2012 for between $140 and $180.

Manufactured in: Taiwan

Remedy: Consumers should immediately stop using the recalled carrier seats and contact Todson to receive a free hinge cover retrofit kit.

Consumer Contact: For additional information, contact Todson at (800) 250-3068 between 9 a.m. and 5 p.m. ET Monday through Friday, or visit the firm’s website at www.todson.com.

Source:  http://www.cpsc.gov/cpscpub/prerel/prhtml12/12143.html

Please feel free to contact me if you have a personal injury or wrongful death or products liability matter that you would like to discuss.  I’ll be happy to see if I can give you a hand.

Des Moines Register Discusses Continuing Impact Of U.S. Supreme Court’s 2009 Age Discrimination Decision

Today the Des Moines Register had an interesting article on a 2009 U.S. Supreme Court decision involving an age discrimination claim brought by an Iowan.  That case made it more difficult to sue for age discrimination in employment.  The news article describes what’s happened since that decision both for the people involved and for other workers considering age discrimination claims.  It also discusses ongoing efforts by Iowa Senators Tom Harking and Charles Grassley to return age discrimination law to its former, more lenient state.  It’s a rare opportunity to see what happens after a high profile appellate decision:

http://www.desmoinesregister.com/article/20120414/NEWS/304140017/Age-discrimination-case-has-been-stressful-for-Iowan

I can help you with any employment law or labor law questions that you might have.  Please feel free to contact me for a free initial consultation about employment law or labor law.

Treatment Of Call Center Employees Under Federal Overtime Law

In recent post I’ve discussed growing issues of employers that require employees to work off-the-clock, including responding to off-shift e-mails and cell phone calls.  Another area of frequent off-the-clock overtime violations involves employees who work at call centers as customer service representatives.

The Fair Labor Standards Act requires covered, non-exempt employees be paid time and a half for all hours worked over 40 per work week. Call Center employees and customer service representatives, under most circumstances, qualify for overtime pay for any time that they work over forty hours in a given week.  Employers often fail to pay these employees their required overtime wages. In addition, call center employees and customer service representatives are often required to work “off the clock” in violation of the law.  This work can include time spent:

• Booting up computers and logging in & out systems and programs
• Making notes and completing paperwork before or after calls have been completed
• Reading company memos and updates
• Attending meetings and required training programs
• Working through lunch breaks

There have been several recent lawsuits brought on behalf of call center employees and customer service representatives to recover unpaid overtime compensation and pay for work done off the clock. In a lawsuit against Sprint/United Management Co., Sprint agreed to a $9 million settlement to compensate call center employees for working before their shifts, after their shifts or during meal breaks.  In another such suit, APAC Customer Services, Inc. agreed to settle an overtime claim with their customer service representatives for $4 million as payment for time spent logging into the computer system, performing clerical duties and reviewing company notices prior to logging into the company’s timekeeping system.

Overtime cases require analysis of federal statutes, U.S. Department of Labor regulations, and court decisions.  I can help you with any employment law or labor law questions that you might have.  Please feel free to contact me for a free initial consultation about employment law or labor law.

Federal Seizures Of Dangerous Products

Investigators with the U.S. Consumer Product Safety Commission (CPSC) prevented more than half a million violative and hazardous imported products from reaching the hands of consumers in the first quarter of fiscal year 2012.

Working with U.S. Customs and Border Protection (CBP) agents, CPSC port investigators successfully identified consumer products that were in violation of U.S. safety rules or found to be unsafe. CPSC and CBP teamed up to screen more than 2,900 imported shipments at ports of entry into the United States. As applicable, these screenings involved use and abuse testing or the use of an X-ray fluorescence (XRF) analyzer. Their efforts prevented more than 647,000 units of about 240 different noncomplying products from reaching consumers, between October 1, 2011 and December 31, 2011.

Topping the list of products stopped were children’s products containing levels of lead exceeding the federal limits, toys and other articles with small parts that present a choking hazard for children younger than 3 years old, and toys and child care articles with banned phthalates.

In addition to violative toys and other children’s products, items stopped at import included defective and dangerous hair dryers, lamps and holiday lights.

“We mean business when it comes to enforcing some of the toughest requirements for children’s products in the world. If an imported product fails to comply with our safety rules, then we work to stop it from coming into the United States,” said Chairman Inez Tenenbaum. “Safer products at the ports means safer products in your home.”

During fiscal year 2011, CPSC inspected more than 9,900 product shipments at the ports nationwide and stopped almost 4.5 million units of violative or hazardous consumer products from entering the stores and homes of U.S. consumers.

CPSC has been screening products at ports since it began operating in 1973. In 2008, the agency intensified its efforts with the creation of an import surveillance division.

Source:  http://www.cpsc.gov/cpscpub/prerel/prhtml12/12142.html

Please feel free to contact me if you have a personal injury or wrongful death or products liability matter that you would like to discuss.  I’ll be happy to see if I can give you a hand.

Compensation For Off-The-Clock Or Off-Shift Work

Do you ever find yourself performing work “off the clock” simply because your employer tells you that you must?  You are not alone.  Off the clock work is very common.  Employers often require managers to perform scheduling and “shift change” activities such as register counts off the clock following the conclusion of a shift.  The employer’s view is that it’s just a few minutes, so there’s no need to pay you.  Here’s the catch – 10 minutes a day for a year adds up.

Erbe Law Firm is currently prosecuting a potential class action against Git N’ Go Convenience Stores, Inc. on behalf of a group of assistant managers who were required to perform off-shift work, such as bank runs, end-of-shift closing reports, and responding to alarm calls, without compensation.  We believe that such work is compensable and that Git N’ Go’s assistant managers are entitled to regular wages for their hours up to forty per week and premium overtime wages (time and a half) for every hour worked over forty.

The Fair Labor Standards Act sets limitations on “preliminary or postliminary activities” which are compensable under the FLSA.  The Supreme Court has addressed this issue many times, most recently in 2005 in IBP v. Alvarez and Tum v. Barber Foods.  In these cases, the Court addressed the question of whether or not “donning and doffing” equipment prior to and after the “principal activity” of an employee’s work is compensable time.  The Court held that donning and doffing gear that is “integral and indispensable” to employees’ work is a “principal activity” under the FLSA, and that the time spent walking to and from the worksite after donning and before doffing, as well as the time spent waiting to doff, are compensable under the FLSA.

More often than not, employees who are required to wear heavy protective gear – HAZMAT employees and production line employees, for instance – are required to punch in after suiting up and getting to work.  You may also be entitled to overtime for mandatory off-the-clock or off-shift work.

Overtime cases involving off-the-clock work require analysis of federal statutes, U.S. Department of Labor regulations, and court decisions.  I can help you with any employment law or labor law questions that you might have.  Please feel free to contact me for a free initial consultation about employment law or labor law.