On November 6, 2018 voters passed Arkansas Issue 5 by an overwhelming margin; nearly 7 in 10 voters said yes. Issue 5 raises the minimum wage in Arkansas starting at the beginning of the year. Currently, the minimum wage is $8.50; on Jan.1, 2019, it will go up to $9.25. In 2020, it goes up to $10 an hour, and in 2021 the minimum wage will rest at $11. For tipped employees, such as most waiters and bartenders, the base $2.63 per hour will not change. However, if a tipped employee’s tips don’t get the employee’s pay rate up to minimum wage, the employer will have to cover the difference.
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March 1, 2019
Moving forward employers should be aware that although the DOL has completely back away from the 80/20 rule, plaintiff’s lawyers are still pursuing that argument. Until the 8th Circuit’s precedent in the Fast case is overruled any case brought before Judge Holmes will apply the 80/20 rule in private lawsuits brought by individuals. We do not know what other judges in the district might do; however, it is hopeful that this issue will be brought before the 8th Circuit in an attempt to overrule Fast and bring the courts back in line with the DOL’s current position in regard to the 80/20 rule. Below is a summary for you to send out to members regarding this development.
Last week the United States Department of Labor (DOL) issued an updated provision to its Field Operations Handbook (FOH) regarding whether tipped employees are working “dual jobs.” The changes to section 30d00(f) of the FOH essentially redact the DOL’s “80/20 Rule.” This change was anticipated after the DOL issued an opinion letter on November 8, 2018, calling the rule unworkable. The 80/20 Rule disallowed employers from taking the tip credit if a tipped employee spent 20% or more of their time performing non-tipped related duties in conjunction with their tip producing duties.
The updated FOH guidance does not set a percentage limitation on the amount of non-tip producing duties that a tipped employee can perform so long as the duties are “performed contemporaneously with the duties involving direct service to customers or for a reasonable time immediately before or after performing such direct-service duties.” Additionally, the guidance instructs DOL investigators to consult the Occupational Information Network (O*NET) to determine whether duties are “related or unrelated to the tip-producing occupation.” If a job duty is listed as “core” or “supplemental” under the “tasks” section of a tip-producing occupation on O*NET, it will be considered “related to the tipped occupation.”
For example, one “core” task under O*NET’s description for “waiters and waitresses” is cleaning tables and counters after patrons have finished dining.
According to the new guidance, employers may take a tip credit for any amount of time a waiter or waitress, who is a tipped employee, spends performing these duties. For occupations without an O*NET description, the new guidance requires a comparison between that occupation’s job duties and job duties of similar occupations that do have O*NET descriptions.
This updated guidance provides a much more workable application of FLSA regulations for employers who employ tipped employees.
Join Us in This Important Effort
Service animals enrich the lives of many disabled Americans by performing vital tasks that increase their owners’ safety, mobility and independence. These animals are not a luxury, but a necessity. By denying a disabled person with a service animal access to your business, you’re exposing yourself to lawsuits and serious penalties. So please join us in welcoming disabled guests and their service animals into your business. It’s the law. And it’s the right thing to do.
“We Welcome Service Animals” is a national campaign created by the California Hotel & Lodging Association Educational Foundation and made possible by funding from the American Hotel & Lodging Foundation and the American Express Foundation to teach people in the hospitality industry and law enforcement how to improve service to disabled guests who depend on service animals for assistance. Under the Americans with Disabilities Act (ADA), hotels, motels and restaurants are required to treat disabled customers with service animals like all other guests, providing them with the same service and access to all areas where other guests are allowed. Violating the ADA can lead to serious penalties and costly lawsuits. Also denying access to disabled people with service animals is a crime in every state.
Congress passed the Americans with Disabilities Act (ADA) in 1990 to prevent discrimination against persons with disabilities. Among other things, the law guarantees all disabled persons the legal right to be accompanied by a service animal in all areas open to the general public. Failure to comply with the ADA exposes you and your business to lawsuits and serious federal penalties. Other state and local laws against discrimination may also exist in your area.
Federal law defines a service animal as any guide dog, signal dog or other animal trained to perform tasks for an individual with a disability. While most service animals are dogs, other animals, such as miniature horses, are sometimes used. The potentially life-saving tasks they perform may include:
You may not always see a service animal performing these tasks — but they’re always on the job, working to make life safer and more rewarding for their owners. Service animals can often be identified by special harnesses or colorful vests they sometimes wear — but these items are not required by law. So if you are uncertain whether an animal is a service animal, simply ask its owner.
Under the Americans with Disabilities Act:
For more information about our “We Welcome Service Animals” program, or please contact Montine McNulty at 501-376-2323 by phone or by e-mail . For more information on the Americans with Disabilities Act, please contact the Department of Justice via the telephone numbers or web site below.
ADA Information Line — Telephone: 1-800-514-0301 (Voice)
ADA Information Line — Telephone: 1-800-514-0301 (TTY)
ADA Homepage: http://www.ada.gov/