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Friday, November 16, 2018

Tip Credit Has New/Old Regulation Helpful Interpretation

Last Thursday while I was attending the ABA Labor & Employment Law Section meeting, the U.S. Department of Labor Wage and Hour Division, issued an advisory opinion letter, FLSA 2018-17, that amends previous guidance regarding the “tip credit provision,” sometimes known as the 80/20 rule. The “tip credit” provision addressed the payment of minimum wage and applies to employees of a business that usually receive at least $30 per month in tips. These “tipped employees” are not required to be paid federal minimum wage (currently $7.25 per hour), but instead, only $2.13 per hour. In 2011, the Department of Labor had issued an opinion rescinding a 2009 opinion and instituting what has colloquially been called the “80/20 rule.” By FLSA 2018-17, the Department of Labor fully reinstated the prior 2009 determination, which will have far reaching consequences for employers of “tipped employees,” in the restaurant industry.

In order to understand this change, it is important to understand the old 80/20 rule. That rule is illustrated by the following example: A server primarily engages in the act of serving customers, or a “tip-producing” occupation. However, the server may engage in other work that does not directly generate tips, often called “side work.” This side work may involve folding napkins, wrapping silverware, cleaning tables, and similar tasks. The 80/20 rule, at its core, mandated that if such “non-tipped” tasks exceed twenty percent (20%) of an employee’s duties, the employer would not be able to use the “tip credit provision,” and could be required to pay the employee minimum wage. This led to numerous claims by employees that an employee’s collateral duties exceed twenty percent of the employee’s working time and demands that an employee be paid full minimum wage. The rule turned into a nightmare for the small business.

Last week’s new guidance from the Department of Labor undoes the 80/20 rule. Now, there will be no limitation on the amount of duties that do not directly produce tips, provided they are related to the tip-producing occupation, and are performed contemporaneously with direct customer service or “tip-producing” duties, which would include folding napkins, wrapping silverware, cleaning tables, and similar tasks.

Note that this would not apply to employees who engage in dual occupations, rather than those who complete some non-tipped work related to an employee’s customer service duties. For instance, the opinion letter cites the example of an employee who performs both duties as a waiter and a maintenance man. The employer is not entitled to take the “tip credit” for the time that the employee works as a maintenance man, because this is not a “tipped” profession. The opinion is limited to work performed that is related to the “tipped” profession. Also, be advised that this determination applies only to federal minimum wage standards. Certain states and localities may have different laws and regulations concerning minimum wage.

Common Sense Counsel: Other than Tipped Employees, there are several FLSA Compensable Time Issues That Can Trip You Up Big Time! The FLSA clearly defines what qualifies as compensable time. Do the following count: Waiting time, On-call time, Rest and meal periods, Sleeping time, Lectures, Meetings and training programs, Travel time, Meal time, after hour emails/text messages?

Problems occur when employers fail to have legally defensible handbook policies, employee sign-offs and notices, and supervisors trained to recognize and count certain hours worked as compensable time. Getting it wrong can be costly.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and can be contacted at or 334-246-2901. Blog at

Wednesday, November 7, 2018

U.S. Supreme Court Must Have Read #MeToo Old Column

On November 6, the U.S. Supreme Court handed down its opinion in Mount Lemmon Fire District v. Guido, holding 8-0 that the Age Discrimination in Employment Act of 1967 applies to all state and local governmental employers, regardless of the number of employees. Justice Brett Kavanaugh took no part in the consideration or decision of the case.

According to the Court, Section 630(b) of the ADEA has two separate categories of “employer.” “Employer” means: (1) “a person engaged in an industry affecting commerce who has twenty or more employees . . .” and (2) “a State or political subdivision of a State.” The Court noted that the language “also means” should be read as connoting “in addition to.” Accordingly, the Court ruled that the 20-employee minimum applicable to private sector employers did not apply to state or local governmental employers.

The employer unsuccessfully argued that the ADEA should be interpreted in accordance with Title VII of the Civil Rights Act of 1964, which applies to states and political subdivisions with 15 or more employees. In rejecting the employer’s argument, the Court noted that, when enacted, neither Title VII nor the ADEA applied to state or local governments at all. Congress amended Title VII in 1972, and the ADEA in 1974, to apply to state and local governments, but in doing so, had used different language.

Notably, the 1972 amendments to Title VII did not change the definition of the term “employer” – “a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year . . .” Nevertheless, the amendments changed the definitions of “person,” and “industry affecting commerce.” Specifically, Congress changed the Title VII definition of “person” to include “governments, governmental agencies, [and] political subdivisions.” Congress changed the definition of “industry affecting commerce” to “include any governmental industry, business, or activity.” As a result of these two definitional changes, since 1972, all governmental entities are Title VII “employers” if they have 15 or more employees.

The impact of the Court’s decision in Mount Lemmon is expected to be considerable, as state and local governmental employers with fewer than 20 employees are now subject to suit under the ADEA. Although the Eleventh Amendment to the U.S. Constitution will shield state employers of all sizes from private ADEA actions, state employers with fewer than 20 employees (as well as larger state employers) will be subject to age discrimination lawsuits filed by governmental entities such as the Equal Employment Opportunity Commission. Moreover, because Eleventh Amendment immunity does not apply to local governmental entities such as municipalities, counties, and school boards, the Mount Lemmon decision exposes those local governmental employers with fewer than 20 employees to suit under the ADEA from private and governmental plaintiffs alike.

Common Sense Counsel: Read my column from last week on Age Discrimination “Code Words” to avoid, which are being used as direct evidence of age discrimination in employment claims.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP office in Opelika, AL and West Point, GA can be contacted at or 334-246-2901. Tommy’s Jacksonville, FL partner Damon Kitchen heads the Constangy Public Sector Practice Group and drafted this client update.

Friday, October 19, 2018

OSHA Softens on Post-Incident Drug Testing

In May 2016, the Occupational Safety and Health Administration amended 29 CFR §1904.35 to prohibit employers from retaliating against employees for reporting work-related injuries or illnesses. This revision to the recordkeeping regulations became immediately controversial when OSHA interpreted it to limit employers’ use of safety incentive policies and post-incident drug testing. On October 11 OSHA issued a Memorandum to Regional Administrators, which the Agency represents is a clarification of its position on safety incentive policies and post-incident drug testing.

Safety Incentive Policies

OSHA’s May 2016 amendment made it clear that employee safety incentive policies premised on OSHA-recordable cases were suspect because they could have the effect, whether intended or not, of discouraging or deterring employees from reporting work-related injuries or illnesses. OSHA acknowledged at the time that such policies could be well-intended efforts by employers to encourage employees to work safely but stated that there were better ways to accomplish that goal. Rather than tying safety incentives to recordable cases, OSHA suggested rewarding employees who participate in safety-related activities, such as identifying hazards or participating in accident investigations.

In the new Memorandum, OSHA again acknowledges that such policies may be motivated by an employer’s good faith intent to promote safety and health. OSHA emphasizes that rewarding employees for their participation in these types of proactive safety efforts will not violate § 1904.35(b)(1). According to the Memorandum, a safety incentive policy premised on OSHA recordables is not by itself prohibited. Rather, such policies will be considered violations only if they penalize employees for reporting work-related injuries or illnesses, or are implemented in a way that discourages reporting.

Post-Incident Drug Testing

When OSHA amended § 1904.35 in May 2016, some employers had mistakenly believed that the Agency intended to prohibit post-accident drug testing. Although OSHA’s initial guidance raised doubts about what type of drug testing would be permissible, it became clear that OSHA never intended to prohibit post-accident or random drug testing. 

To clarify its position, OSHA lists the following permissible drug testing:
  • Random drug testing.
  •  Drug testing unrelated to the reporting of a work-related injury or illness.
  • Drug testing under a state workers’ compensation law.
  • Drug testing under other federal law, such as U.S. Department of Transportation regulations.
  • Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees.  If the employer chooses to use drug testing to investigate the incident, the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.

However, in the OSHA guidance issued on October 19 to the general public, OSHA included this warning: “drug testing an employee whose injury could not possibly have been caused by drug use would likely violate section 1904.35(b)(1)(iv). For example, drug testing an employee for reporting a repetitive strain injury would likely not be objectively reasonable because drug use could not have contributed to the injury. And, section 1904.35(b)(1)(iv) prohibits employers from administering a drug test in an unnecessarily punitive manner regardless of whether the employer had a reasonable basis for requiring the test.”

Common Sense Counsel:  Employers can continue to base safety incentive policies on OSHA recordables, but the rewards should be of relatively nominal value, such as pizza parties, tee shirts, or hats. Employers should avoid offering expensive gifts that an OSHA inspector would view as a “substantial” reward that would encourage employees not to report.

As to drug testing, OSHA has provided a list of permissible testing.  As a general rule, post-incident drug testing will be viewed favorably by OSHA if it either is specifically permitted by some federal or state legal requirement or provision, or if it is limited to testing individuals whose conduct could have contributed to the incident. Good time to have your policy updated to stay in OSHA compliance.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP office in Opelika, AL and can be contacted at or 334-246-2901. Parts of this Column were taken from the latest Constangy Workplace Safety Practice Group client alert.

Friday, October 12, 2018

11th Circuit Limits Scope of OSHA Inspections

In the case of United States v. Mar-Jac Poultry, Inc.(link at, an employee at Mar-Jac Poultry in Georgia was injured while attempting to repair an electrical panel using a non-insulated screwdriver. Because the employee was hospitalized as a result of the injury, the Company reported the case to OSHA, as it was required to do under § 1904.39. OSHA began the inspection by focusing on the accident, but then the inspectors sought to conduct a wall-to-wall inspection of the entire facility, looking well beyond the reported electrical hazard that had initially prompted the inspection. Mar-Jac consented only to the focused scope of the inspection and provided, among other documents, its OSHA 300 Logs for 2013 through 2015.

Based on the injuries and illnesses recorded on the OSHA 300 Logs, as well as the fact that Mar-Jac was included within the Regional Emphasis Program for Poultry Processing Facilities, OSHA sought and was granted a warrant to inspect the entire facility for a wide range of safety and health issues, including ergonomic, biological, and chemical hazards.  OSHA’s position at the time of this inspection was that if an inspected employer’s business was covered by a Regional Emphasis Program, the Agency was entitled to automatically expand the scope of the initial inspection to conduct a comprehensive wall-to-wall inspection looking at the categories of hazards addressed by the REP, in this case the 16 hazard categories in the Poultry Processing REP. 

Mar-Jac filed an emergency motion in Federal Court to quash the warrant, which request was granted in favor of Mar-Jac. On October 9, the U.S. Court of Appeals for the Eleventh Circuit agreed and found that the Occupational Safety and Health Administration could not expand the scope of an injury-based inspection to a wall-to-wall inspection based on the injuries and illnesses recorded on the employer’s OSHA 300 Logs.

Common Sense Counsel: OSHA cannot conduct an inspection unless an employer gives consent. If an employer does not consent, then the Fourth Amendment to the U.S. Constitution requires that OSHA seek a warrant. Probable cause is required, but a lesser showing is required in OSHA matters than in criminal matters. For OSHA inspection purposes, probable cause is established if OSHA can show either specific evidence of an existing violation or that the inspection was conducted based on “neutral criteria” contained in “reasonable legislative or administrative standards,” such as a Regional Emphasis Program.

Mar-Jac, while encouraging, was issued as an unpublished decision, meaning that it not binding on federal courts outside the Eleventh Circuit states of Alabama, Florida, and Georgia. Although the decision is too recent for OSHA to have taken a position yet, OSHA could argue that its impact is limited to cases in those three states. Employers should remember the Mar-Jac decision when OSHA attempts to expand the scope of an inspection based on the employers' inclusion in a National, Regional, or Local Emphasis Program or the fact that their OSHA 300 Logs show various injuries or illnesses. This is an important decision that all employers should have handy should OSHA attempt to expand its inspection at your particular plant location.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP office in Opelika, AL and can be contacted at or 334-246-2901. Parts of this Column were taken from the latest Constangy Workplace Safety Practice Group client alert.

Friday, September 28, 2018

The NEW Fair Credit Reporting Act (FCRA) Summary of Rights Form is Here!

If your company uses a third-party vendor to conduct background checks on prospective employees, there is a new model for the “A Summary of Your Rights Under the Fair Credit Reporting Act” notice.
Q: When should you start using it?
A: NOW. The Consumer Financial Protection Bureau (CFPB) is responsible for enforcing certain aspects of the FCRA, and published a new model notice titled “A Summary of Your Rights Under the Fair Credit Reporting Act” on September 21, 2018.
The Fair Credit Reporting Act (FCRA) establishes strict procedures that employers must follow when obtaining background check reports on applicants or employees (“consumers”) from a third party “consumer reporting agency.” The FCRA requires employers to provide written disclosures to and seek affirmative consent from applicants and employees before procuring these types of background check reports.
Q: What about employees who I intend not to hire?
A: The FCRA also imposes requirements on employers to provide notice to applicants and employees whom the employer intends to not hire, terminate, or demote based upon the results of a background check report. In complying with these notice requirements, employers are required to give applicants and employees a description of their rights under the FCRA. Many employers use the “Summary of Your Rights Under the FCRA” to comply with the FCRA and give “consumers” notice of their rights when a background check report is requested.
Q: When did Congress adopt the new procedure?
A: Earlier this year, Congress adopted legislation called the Economic Growth, Regulatory Relief, and Consumer Protection Act. This law requires nationwide consumer reporting agencies to provide “national security freezes” free of charge to consumers, which restricts prospective lenders from obtaining access to a consumer’s credit report, thereby making it harder for identity thieves to open accounts in the consumer’s name. The newly enacted law requires that whenever an applicant or employee is provided a summary of their rights under the FCRA, they must also be informed of the new right to a security freeze.
Q: When was the new FCRA Summary Form Released?
A: Earlier this month, the CFPB released a new model “A Summary of Your Rights Under the Fair Credit Reporting Act” notice, which incorporates information about consumers’ right to a security freeze. The new form can be found at Since this new form went into effect on September 21, 2018, employers should begin utilizing the new form immediately.
Follow this link to access the new FCRA Summary of Rights form!
Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP office in Opelika, AL can be contacted at or 334-246-2901. Link to full case at

Friday, September 21, 2018

Injured New Jersey Worker’s Refusal to Submit to Medical Marijuana Drug Testing Not Protected

Daniel Cotto worked as a forklift operator at Ardagh Glass in Bridgeton, N.J.  On November 1, 2016, Cotto hit his head on the roof of a forklift at work while clearly working in a safety sensitive position, according to a recent New Jersey federal court order.  Cotto was sent to an Orthopedics clinic for a medical examination, where the doctor placed him on light duty work. The Ardagh Glass Safety Department asked Cotto to submit to a breathalyzer and urine test in order to return to work.  Cotto explained that he was taking prescription medications, including medical marijuana under the New Jersey Compassionate Use of Medical Marijuana Act (“CUMMA”).  He was also taking prescription Percocet and advised the company that he could not pass any urine or drug test.

Cotto claimed that he revealed his prescription medications to the company when he was hired, and that his doctor had given him a note stating he could operate machinery while using these drugs.  Ardagh Glass advised Cotto that it was not concerned about his use of Percocet but was concerned about his use of marijuana.

Cotto was not fired but he was placed on an indefinite leave.  He was not permitted to return to work until he could pass a drug test.  Cotto’s doctor wrote that Cotto had lifting restrictions because of medical conditions, but Cotto maintained that he could perform the essential functions of the job.  He sought a “reasonable accommodation,” specifically asking that the Ardagh Glass waive any requirement that he pass a drug test for marijuana.

Eventually Cotto filed suit in Superior Court of New Jersey, Cumberland County, asserting claims of disability discrimination, the "perception of disability discrimination," a failure to accommodate, retaliation, and a request for equitable relief including costs and reinstatement. Ardagh Glass then removed the case by invoking the Federal Court's diversity jurisdiction under 28 U.S.C. § 1332, and moved to dismiss the complaint in its entirety because CUMMA does not mandate an employer waiver of a drug test.

While the federal court agreed that Cotto plead enough to satisfy coverage under the New Jersey Law Against Discrimination, for his back and neck pain, and he appeared to be qualified to perform the essential functions of the job, Cotto could not show that he could operate machinery while using marijuana. 

The Court next noted that while CUMMA provides an affirmative defense to New Jersey patients who are properly registered under the statute and subsequently arrested and charged with possession of marijuana, decriminalization of medical marijuana does not shield New Jersey employees from adverse employment actions. These are the thirteen states with Medical Marijuana Cardholder Protection laws: Arizona, Arkansas, Connecticut, Delaware, Illinois, Maine, Massachusetts, Michigan, Minnesota, Nevada, New York, Oklahoma, Pennsylvania, and Rhode Island. 

Cotto’s discrimination claim turned entirely on the question of whether he could compel Ardagh Glass to waive its requirement that he pass a drug test for marijuana.  On that issue the Federal Judge ruled: “It is plain that CUMMA does not require Ardagh Glass to do so.  We therefore find that Plaintiff has failed to show that he could perform the ‘essential functions’ of the job he seeks to perform.  Ardagh Glass is within its rights to refuse to waive a drug test for federally-prohibited narcotics.”

The case is Cotto v. Ardagh GlassPacking, Inc., No. 18-1037 (D.N.J. August 10, 2018), and is the first decision in New Jersey on the issue of employer reasonable accommodations and CUMMA.

Common Sense Counsel: knowing the state drug testing laws, and having the correct policy language is absolutely critical to winning these cases.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP office in Opelika, AL can be contacted at or 334-246-2901. Link to full case at

Wednesday, September 12, 2018

New FMLA Forms from the DOL are Here!

The Department of Labor (DOL) have been working away posting new model FMLA notices and medical certification forms.
Expiration: August 31, 2021.

No more month-to-month extensions. Rest easy through summer 2021. There’s nothing new, other than the new expiration date. Nevertheless, use these templates moving forward. For easy reference, here are the links to the new FMLA notices and forms on my blog site at


Certification forms
The notices/forms also can be accessed from this DOL web page.

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Common Sense Counsel: 9 Ways to Stop FMLA Abuse:

  1. Notice: Always insist employees provide the required notice once they learn of the need for leave, and coordinate with supervisors that such leave be designated as FMLA leave to make sure that employees start burning their FMLA allotment – nothing goes uncounted.
  2. Dock their pay: FMLA leave is always unpaid, and even for exempt employees, you can make deductions from their wages for a few hours’ intermittent leave without automatically converting them to overtime-eligible non-exempt employees.
  3. Ensure eligibility: Make sure employees requesting such leave are eligible to take it. They must be within 75 miles of a worksite with at least 50 employees.
  4. Don’t give it prematurely: Make sure employees have gained at least a year’s seniority with your company, and that they have worked at least 1,250 hours during the previous 12 months. If not, they’re not eligible and requests can be denied.
  5. Require medical certification: Leave must be medically necessary. You can insist on medical certifications, and annual recertifications if needed, and ask about specific reasons for leave, its duration and dates of treatment, both from the healthcare provider and the employee. Attach a job description to the medical certification form. 
  6. Transfers: You can transfer employees to other work if intermittent leave is too disruptive in their normal positions.
  7. Count overtime: You can count overtime missed in calculating the total 12-week allotment.
  8. Count the holidays: You can count any holidays falling within any leave taken toward employees’ total 12-week FMLA allotment, to make sure they reach the limit sooner, and
  9. Make ’em use paid time first: You can compel the use of paid leave first, so employees have to burn vacation before any unpaid FMLA leave.
Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and can be contacted at or 334-246-2901.