Workforce Bulletin

by Michael Kun and Aaron Olsen

In recent years, some plaintiffs' counsel bringing wage-hour claims have have made the strategic decision to bring "hybrid" class actions; that is, actions alleging both federal and state wage-hour claims. These cases can cause logistical nightmares for the courts, and great benefits for plaintiffs, for two primary reasons: (1) the standard for certification of a class is different for federal and state claims, and (2) classes in federal claims are "opt in" classes while those for state claims are "opt out" classes. Indeed, in bringing "hybrid" ...

By:      Robert S. Groban, Jr.

On November 2, 2010, the Government Accountability Office (GAO) released a Report on the H-2B nonimmigrant program (Report).   This Report examines fraud and abuse by examining 10 criminal prosecutions of recruiters and employers participating in the H-2B program. This program allows employers in the hospitality and other industries with a onetime occurrence, peak load, seasonal or intermittent employment needs to supplement their domestic workforce with foreign workers whenever U.S. workers cannot be located for the positions.

The Report found ...

By: Amy J. Traub

The New York State Department of Labor recently issued a proposed rule which would combine the current wage orders for the restaurant and hotel industries to form a single Minimum Wage Order for the Hospitality Industry.  If adopted, the Wage Order would affect requirements related to the minimum wage, tip credits and pooling, customer service charges, allowances, overtime calculations, and other common issues within the restaurant and hotel industries.  Additionally, the Wage Order would provide helpful guidance for traditionally ambiguous wage issues such as ...

An in-house patent attorney who protested that his employer knowingly assigned a $50 million value to acquire patents alleged to be worthless could not link his discharge to whistleblower activity protected by the Sarbanes-Oxley Act. Affirming dismissal in Vodopia v. Koninklijke Philips Electronics, N.V., et al., the Second Circuit Court of Appeals observed that: (1) the complaint clearly centered on the plaintiff’s concern that the patents were invalid, not on the value the company assigned to them; and (2) the complaint did not allege that the $50 million value assigned to those patents was ever reported to the public or to shareholders.

Sarbanes-Oxley Section 806 makes it unlawful for an employer to take an unfavorable personnel action by discharging, or in any other manner discriminating against, an employee in the terms or conditions of employment because of any lawful act done by the employee to provide information or otherwise assist in an investigation regarding any conduct which the employee reasonably believes constitutes a violation of certain enumerated federal laws. 

By:  Robert S. Groban, Jr.

U.S. Department of Labor Issues Proposed Rule on H-2B Wage Rates

On October 4, 2010, the Employment and Training Administration, U.S. Department of

Labor (“DOL”), issued a proposed rule that would require employers to pay H-2B and

American workers recruited in connection with an H-2B job application a “wage that meets

or exceeds the highest of: the prevailing wage, the federal minimum wage, the state minimum

wage or the local minimum wage.” The proposed rule was published on October 5, 2010, in

the Federal Register. Interested parties have 30 days to ...

EBG is holding its annual NY briefing for clients and friends on Oct. 28. This full-day program will feature a special, two-hour workshop just for employers in the hospitality and retail industries, updating the many recent and significant labor and employment law developments affecting the industry. We will provide real-world guidance on how to manage the risks your company faces from increasingly aggressive plaintiffs' lawyers and government investigators who have openly and unabashedly targeted the industry.

Topics on the workshop agenda include:
 

• Wage and hour class ...

Employers with operations in California continue to await a ruling from the California Supreme Court on the question of whether employers must "ensure" that meal and rest breaks are taken, or merely make them "available."

The issue has long been before the Court in the similarly-named Brinker and Brinkley cases, and will turn largely on a single question: what does the word "provide" mean.

This, of course, is much more than a minor semantic issue.  The ultimate decision about what "provide" means will have a dramatic impact upon the wave of wage-hour class actions that have plagued ...

By:  Kara M. Maciel

Over six months ago, Congress passed the most significant and comprehensive health reform law (“PPACA”) that employers have faced in decades. The hospitality industry, in particular, will be confronted with unique challenges to comply with PPACA’s regulations, including a broader definition of a full time employee, expanded employee protections with respect to breaks and whistleblower rights, and notice requirements. As the hospitality industry attempts to grapple with the myriad of new compliance obligations, there has been widespread ...

By Aaron Olsen

Hotel managers that have the responsibility for training employees who take room reservations should pay particular attention to the new regulations announced by the Department of Justice implementing Title II and III of the Americans with Disabilities Act (ADA).  While many of the new regulations address design features to make premises more accessible, the new Department of Justice regulations also provide specific requirements that hotels must follow when reserving rooms.  Hotels will need to properly train their employees and ensure that their electronic ...

In the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank), Congress has crafted an array of bounty awards and whistleblower protections broadly affecting securities, commodities and futures, and consumer financial products firms and those associated with them. Although there was an opportunity to create incentives promoting internal reporting in aid of corporate compliance programs and to rationalize whistleblowing with standardized definitions, procedures and remedies, Congress went in different directions. The result is a set of whistleblower ...