Laws for Receiving Tips and Gratuities

Many employees working in restaurant, valet and other performing services often receive tips and gratuities, which are subject to income tax. Tips and gratuities are the sole property of the employee to whom they were given, meaning they cannot be collected or received by the employer. Additionally, an employer cannot credit the employee’s tips and gratuities against his/her wages to satisfy wage requirements. Since tips are subject to income taxes, employees should report tips to their employers who may then make the appropriate deductions for said taxes on the next paycheck. Some employers attempt to deduct the actual tip amount from the hourly wages earned by each employee; however, this is illegal in the state of California.

In addition to the employer, it is also illegal for any “agent” of the employer to collect, take or receive any tips or gratuities given to an employee by patrons. According to Labor Code, an “agent” is defined as every person other than the employer who has the authority to hire or discharge any employee, or supervise, direct or control the employees’ actions.

It is very common for businesses in restaurant and hospitality industries to create Tip Pooling for employees. A tip pool is created when those employees who receive tips and gratuities place them into a pool which is then divided amongst all employees. The idea is to spread the risk of receiving little or no tips and gratuities from low-tipping patrons among all tipped employees. Tip pools also create a way for tips and gratuities to be shared with employees who are not directly tipped by customers, such as table bussers. Although California law does not specifically prohibit involuntary tip pooling, the employer or any agents of the employer cannot share in the tips.

There are a few downsides for employers when creating tip pools: (1) There may be less incentive for employees to work hard for their tips and gratuities when they know it will not go straight into their own pockets; (2) all employees who contribute to the patron’s service should be included in the tip pool, which other employees may not agree with; and (3) there is always a risk that the tip pool may later be determined unlawful. Conversely, not implementing a tip pool may cause some employees who do not receive tips and gratuities to demand a higher pay rate.

If patrons are permitted to pay tips by credit card, employees must receive their tip amounts no later than the next regular payday following the date the patron authorized the credit card payment. Employers must keep accurate records of tips and gratuities received, including those received by employees through a customer’s credit card. Additionally, costs of credit card charges incurred by the employer cannot be deducted from tips and gratuities paid by the customer on said credit card. Since the employer chose to use the services of the credit card company, the employer, not the employee, must bear the cost of using that service.

Unfair Work Discipline Demotion Laws

Although there are no federal or state laws protecting an employee from unfair work discipline demotion laws, the California Supreme Court does recognize an employee’s right to sue for “wrongful demotion” if a contract is breached without a just cause. Since personal grudges sometimes become reality in the work place, it is important for employees to protect themselves against unfair work discipline demotion laws.

Wrongful demotion occurs when the employer commits an unfair work discipline demotion due to lack of a just cause. Meanwhile, a just cause is defined as a fair and honest cause or reason, acted on in good faith by the employer. Therefore, in order to legally demote an employee with just cause, there must not be a breach in any written, oral or implied contract for any reason. Similar to termination laws, unfair work discipline demotion laws clarify that an employee cannot be demoted due to retaliation for exercising a legal right. Examples of this would be demotions due to filing a workers’ compensation claim, picketing or striking without violating just policies, or stopping an employee from climbing higher up the company’s salary structure.

A case in point of such unfair work discipline demotion happened when two senior managers were disciplined for alleged misconduct. The exact demotions were reductions in their salaries and benefits. However, the court agreed with the managers' argument that the employer's policies, practices and communications created an implied contract not to demote without just cause. Since the employer's handbook contained a progressive discipline system requiring counseling, oral and written warnings, and other disciplinary steps before demotion would occur, the court found a breach of the implied contract not to demote without good cause.

Apple's Intolerable Working Conditions

In recent years, Apple has been accused of permitting intolerable working conditions for the creation of their products. Foxconn, one of Apple’s main suppliers, is the largest contract manufacturer of electronics in the world. Foxconn manufactures Apple products such as the iPhone, iPod, and iPad. Within the last couple of years, there has been over ten suicides at Foxconn complexes, most of which occurred at the Shenzhen complex. These deaths have been attributed to intolerable working conditions.

Consequently, Apple has put together efforts to prevent further suicides. At the Shenzhen complex, large nets have been installed on the buildings. These nets are meant to catch suicidal employees who have jumped out of the complex’s windows. Other efforts to prevent suicides include pay raises and the availability of counseling.

Since the wave of Foxconn suicides, Apple has improved its process of upholding work safety standards at their manufacturing facilities. Apple has contended that they are very diligent in cutting ties with suppliers and contractors that operate with intolerable working conditions. Even though Apple claims to have improved its auditing process, it is still questionable as to whether or not their auditing procedures are thorough enough.

In the Apple Supplier Responsibility 2011 Progress Report, Apple did not mention any issues related to intolerable working conditions at the Shenzhen complex. Nor did Apple mention Foxconn’s association with poor working conditions at all. The report does come to reveal, however, that the majority of Apple’s suppliers do not comply with their Supplier Code of Conduct. In particular, there has been a significant increase in the use of underage labor among the suppliers. China Labor Watch, an organization based in New York, has reported that the working conditions at Apple’s suppliers in China are much more severe than what Apple has claimed. Essentially, there is enormous room for improvement in creating satisfactory working conditions at Apple’s manufacturing facilities.

Apple maintains that it strives to be a leader in the industry for eliminating intolerable working conditions. Still, unfortunate incidents have continued to occur at Apple manufacturing facilities. Recently, there was a deadly explosion at Foxconn’s Chengdu plant, a facility that manufactures the iPad. Three workers were killed and fifteen were injured in this explosion, supposedly triggered by combustible dust. Moreover, around fifty workers have been poisoned at a firm that manufactures touchscreens for Apple. Ultimately, Apple, as well as other technology companies, needs to realize that intolerable working conditions do not need to exist in order to reduce manufacturing costs and keep the price of American gadgets low. Work safety should be top priority.

Overtime Pay Laws in California

There are several important things for employees to know about overtime pay laws in California, which will benefit those employees more than corresponding federal regulations. For nearly all non-exempt private sector employees in California, overtime pay laws are based not only on the number of hours worked per day, but also per week. Overtime consists of any hours worked over 8 hours in a single work day or 40 hours in a single work week.

According to California overtime pay laws, employers must provide time-and-one-half the employee’s regular rate of pay for: (1) all hours worked over 8 in a single workday; and (2) the first 8 hours worked on the seventh consecutive day worked in a single workweek. Double hours must be given for: (1) all hours worked beyond 12 in a single workday; and (2) the hours worked beyond 8 on the seventh consecutive day worked in a single workweek. In the situation where an employee works a 6-day workweek, but has not worked more than 40 hours in that workweek, no overtime is owed unless the employee works more than eight hours on the sixth day.

Payroll administration often has a difficult time while calculating overtime due to confusion over time-and-one-half and double-times. That is why employees should thoroughly understand overtime pay laws as well as their employer’s overtime policies before their first paycheck arrives. No matter what level of overtime pay the employee is going to receive, the calculations must be based upon their “regular rate of pay” versus their normal hourly amount. Under overtime pay laws, the regular rate is a term used to mean the employee's actual rate of pay once all hourly earnings plus many other types of compensation are considered. It must include nearly all forms of pay received by that employee, including commissions, production bonuses, piece work earnings, and value of meals and lodging.
A sample calculation of the regular rate is as follows: a restaurant employee receives $10 per hour while working as a hostess and $9 per hour while bussing. Assume she receives no tips or other forms of pay. In a five day period, she works 10 hours per day – 40 hours as a hostess and 10 hours bussing overall. Therefore, her regular rate of pay is (($10×40) + ($9×10)) ÷ 50, which equals $9.80. Assuming her employer’s policy is to give employees time-and-one-half for overtime work, then she receives $9.80 ÷ 2, which is equal to $4.90 as her overtime premium. Therefore, she would receive $4.90 × 10 (which is $49.00) in overtime pay in addition to her $490 in base pay, making a grand total of $539.00 for the week (before taxes of course).
One way many employers try to avoid confusing overtime pay laws is by placing employees on salary instead of hourly pay structures. However, non-exempt salaried employees still must receive overtime pay for hours worked over 8 hours in one work day or 40 hours in one work week. As mentioned earlier, it is very important for employees to understand their company policies and corresponding overtime pay laws since there are many different situations and confusing calculations involved.

Pregnancy Discrimination in the Workplace: Laws for Time off and Reinstatement

Even though female employees are eligible for Pregnancy Disability Leave from their first day on the job, they must have worked as least 1,250 hours in the past 12 months to take additional leave under the California Family Rights Act (CFRA). The third important act to remember is the federal Family Medical Leave Act (FMLA), which is leave provided for employees disabled by pregnancy or pregnancy-related issues. When an employer illegally prevents an employee from taking such leave, it is a form of Pregnancy Discrimination.

While the CFRA and FMLA are similar and may overlap for some employees, it is usually dependent on how many employees the business has in order to qualify for each. To lay things out as generally as possible, a California employee could take 4 months PDL leave, 12 weeks FMLA leave and additional time for “baby bonding” under CFRA.

Under Pregnancy Disability Leave, employers with 5 or more employees must provide up to four months of leave for employees disabled by pregnancy and pregnancy-related conditions. Although employers are not required to pay wages during Pregnancy Disability Leave (unless that employer pays wages for other types of disability leave), most benefits and the accrual of seniority must continue. The only exception to this is that employers are not required to continue health benefits during Pregnancy Disability Leave, unless there are limited circumstances. As mentioned above, the employee can take up to 4 months of Pregnancy Disability Leave, either as one single chunk of time or broken down into a combination of shorter periods.

The FMLA provides leave for employees disabled by pregnancy or pregnancy-related issues. The CFRA, on the other hand, does not provide for such leaves. Both the FMLA and CFRA cover private employers with 50 or more employees on the payroll during each of any 20 or more calendar weeks in the current calendar year or the preceding calendar year, and all public employers, regardless of the number of employees. Employees may take up to 12 workweeks of family leave in a 12-month period, as one single chunk of time or broken down into a combination of shorter periods. They may also create a reduced work schedule, where he/she works fewer hours per day and counts those hours toward the 12-week entitlement.

A couple of random details are as follows: (1) If both the mother and father work for the same employer and wish to have more “baby bonding,” the employer may limit them to 12 weeks combined time off. However, FMLA specifies the two must be “husband and wife,” while the CRFA states the two can be “parents” regardless of whether or not they are married.

When an employee is ready to return to work after Pregnancy Disability Leave, FMLA and/or CRFA, the employer must reinstate her to the original position or a comparable position. Regarding Pregnancy Disability Leave, there must be legitimate business reasons if reinstatement is denied. Finally, under FMLA and CRFA, the employer can only refuse to honor the reinstatement guarantee under very limited circumstances.

Unpaid Overtime

According to the Washington Post, a lawsuit has been filed against the Loudoun County sheriff’s office and Sheriff Stephen O. Simpson due to unpaid overtime. Numerous Loudoun County deputies, as well as members of the Police Benevolent Association (PBA), filed this lawsuit. They contend that the unpaid overtime was caused by Simpson’s implementation of unfair labor practices. Furthermore, they claim that these unfair labor practices have a negative influence on how a deputy does his or her job and, therefore, affect the safety of the community. Accordingly, they are seeking $600,000 in damages.

Basically, the lawsuit affirms that the deputies should be paid overtime for all hours worked over forty in a workweek. In addition, the lawsuit contends that the sheriff’s office has purposely avoided paying overtime by establishing a flex policy. This policy involves cutting a deputy’s regularly scheduled work hours when he or she has worked extra hours in a workweek, to cover for another deputy perhaps.

Simpson claims that this lawsuit is a case of “dirty politics” because the PBA had previously supported his political opponent. The Loudoun chapter of the PBA strongly denies a political motivation of the lawsuit, however. Simpson also noted that he opposed the implementation of the flex policy. He alleges that a county-hired consultant put it into place, and that the county is more to blame for the unpaid overtime. “Somebody works overtime, you get paid overtime, that’s the price of doing business. But [the county] cut my overtime dramatically, and that’s why we’re where we are” he said.

How to avoid an unpaid overtime claim: Overtime Policies

In California, there are several regulations and exemptions that relate to overtime pay. These statutes are more beneficial to employees than the corresponding federal regulations. Eight hours of work per day is normal for a nonexempt employee with a regular workweek. Nine or ten hours of work per day can be normal for employees with an alternative workweek. Only straight-time hours count towards overtime. Therefore, if an employee has been paid overtime for hours over eight in a day, those overtime hours do not count toward the 40-hour weekly limit. Overtime does not include hours not actually worked by an employee, which includes vacations, holidays, etc. Overtime hours are strictly based on hours worked, not hours paid.

Overtime pay is based mostly on the number of hours worked in one day. Overtime must account for weekly totals as well. Based on California law, time-and-one-half an employee’s regular rate of pay must be provided for all hours worked beyond eight in one workday, as well as the first eight hours worked on the seventh consecutive day worked in a single workweek. An employee must be paid double their regular rate of pay for all hours worked beyond twelve in a single workday, as well as any hours worked beyond eight on the seventh consecutive day. Essentially, it is imperative for an employer to put posters regarding pay rules and overtime on a place where all employees can view them. That way, employees will be reassured that their employer will not consent to unpaid overtime.

Wrongful Termination

Texas Tech football coach, Mike Leach, might sue the university for wrongful termination. Leach claims that his dismissal was in violation of his contract and was made without due process. Leach’s suspension was attributable to several unfair decisions that he made involving his football players. In particular, he has been criticized for his decision to isolate Adam James, a sophomore receiver, in an equipment garage during team practice. At the time, James was recuperating after a concussion that Leach allegedly failed to acknowledge. James went on to report that he was deeply embarrassed for being punished for his football-related injury, and that Leach treated him extremely unfairly. After this incident, Leach refused to apologize to James and claimed that the university never gave him the opportunity to tell his side of the story.

Texas Tech alleviated its necessity to pay Leach by firing him “for cause.” Ultimately, this “for cause” component leaves Texas Tech free from an obligation to compensate Leach and continue his contract. Nonetheless, Leach could file a wrongful termination lawsuit against the university by claiming that his actions did not violate any of the stipulations listed in his contract. Leach could also come to argue that his suspension was too early and impulsive of Texas Tech. On the other hand, the university could contend that Leach violated player safety rules, which is noted in his contract. Thus, if Leach is found to have violated these safety regulations, then the “for cause” suspension will be justified. In effect, there might be a big “legal showdown” between Leach and Texas Tech. It is also likely that James will sue Leach for his unjustified punishment and humiliation.

There are termination policies that can potentially protect employers, like Texas Tech, from claims of wrongful termination. As an employer, it is important to have an established termination policy and to document all events that relate to each termination process. There are several forms to fill out and activities to execute within the termination process. When an employment relationship ends, there are numerous types of separation that can occur. In this case, Mike Leach was fired, which is an involuntary termination of an employment relationship. Fundamentally, there is no procedure that guarantees employer autonomy from wrongful discharge liability or the prevention of an employee filing a wrongful discharge action. Therefore, it is important for an employer, like Texas Tech, to consider seeking out labor law counsel before terminating an employee.