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Employment Law

Sushi case shows how complicated tip credit can be

02/09/2010

A recent Florida case illustrates just how complicated the tip credit provision of the FLSA can be. In that case, a hostess at a Sushi Samba restaurant claims the restaurant forfeited its right to claim the tip credit because it distributed tips to employees who weren’t eligible to receive them. The controversy turns on the question of whether sushi chefs are tip-eligible employees.

Beware bias based on gender stereotyping

02/09/2010

While the federal Civil Rights Act contains no outright prohibition against discrimination based on sexual orientation, that doesn’t mean employers can get away with discriminating against employees who don’t fit society’s stereotypes about how men and women should look. Sex stereotyping may well be sex discrimination because it is based on notions of what is “feminine” and “masculine.”

Control key to independent contractor status

02/09/2010

Employers sometimes use independent contractors as a way to lower their benefits and other labor costs. But that kind of economizing can turn out to be quite expensive if a court decides that the independent contractor is really an employee. One of the deciding factors in such cases is how much independence a worker has to control his work. The greater the employer’s control, the greater the likelihood that the “independent contractor” is really an employee.

Walmart settles after NLRA charge in Hastings

02/09/2010

When retail giant Walmart allegedly threatened to fire an employee who advocated for unionizing a store in Hastings, the United Food and Commercial Workers’ union filed National Labor Relations Act unfair labor practices charges. Now Walmart has settled with the National Labor Relations Board.

Accommodations: Use the courts’ simple factors to decide if a job function is really essential

02/09/2010

It’s up to employers to determine which job functions are essential and which are not. When a disabled employee challenges an employer’s list of essential functions, courts generally won’t second-guess the employer if the list of functions passes muster against a few simple guidelines. When deciding whether job functions are essential, courts consider these factors:

First time hiring member of protected class? Have legitimate rationale before terminating

02/09/2010

When you hire someone, you have presumably concluded that the new employee has met at least the minimum requirements for job success. Of course, sometimes that turns out to be wrong. But think twice if you’re tempted to fire an employee who isn’t working out, and that person is your first-ever employee belonging to a particular protected class.

On the other hand, sometimes quick termination works, too

02/09/2010

Sometimes you realize early on that a recent hire is not going to work out. He may have looked good on paper, but isn’t doing well on the job. It may then be time to cut your losses.

Vets entitled to same job, not necessarily same location

02/09/2010

Employees who are called to active military service have certain job protections, including the right to return to their old or similar jobs. But those rights have limits. The law doesn’t require reinstating a veteran to her old job at the same facility where she worked before if the employer no longer has jobs there.

Firm skids on ICE, eventually collides with EEOC

02/09/2010

Things started out rocky last November for American Building Maintenance (ABM), a nationwide janitorial services conglomerate, when ICE agents busted it for employing 1,200 undocumented workers. Bad turned to worse in January when the EEOC filed a complaint against ABM, alleging race discrimination against black workers hired last fall through a nonprofit Minneapolis employment agency called Emerge.

It’s tough in the trenches

02/09/2010

The owner of a Hermantown construction company observed one of his workers in a trench performing his job incorrectly. So to get his attention, he nudged him … with the backhoe. The owner was charged with second-degree assault.