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Tip Pooling: Department of Labor Reverses Stance on Controversial Practice

In the U.S., tips are an enormous part of how some people make a living. This is because tipping, and a practice of tip credits, is a common way employers can pay less than minimum wage to their employees. Tip pooling is a practice where an employer requires tipped employees to share those tips. Sometimes employers will even require that these tipped employees put their tips in a pool including the “back of the house”-employees such as cooks who don’t get tips. Tip pooling with employees that aren’t normally tipped was made illegal at a federal level back in 2011 after an Obama administration ruling. The ruling was primarily in response to a 9th Circuit ruling that allowed employers to implement a tipping pool including back-end employees if they did not take a tip credit-the credit which allows employers to pay a tipped employee less than minimum wage. The theory behind the DoL decision was that tips are essentially gifts to employees and become the property of that employee when given. While a tipping pool with all tipped employees isn’t a huge issue as they are all contributing, forcing employees to participate in a tipping pool with non-tipped employees is a bit like forcing them to give away part of their tips.

However, just last week Trump’s Department of Labor (DoL) issued a statement reversing this position on tip pooling. This move certainly allows more leeway to employers but has the potential to leave employees normally relying on tips seeing much less money. Once fully enacted, it could even allow an employer who pays their employees minimum wage and doesn’t take a tip credit to outright keep all tips customers give employees.

Tip PoolingThe rule change isn’t going to take effect immediately. While the DoL won’t be enforcing the tip pooling rule, it’s new rules on the practice are expected to take around a year to see light. In some states it won’t take effect at all due to state law (California and New York especially) or case law making the practice illegal regardless of the position of the federal government.

With tipping such a huge part of how some people make a living, as well as something which can leave a misinformed employer in hot water, it’s important to fully understand how our laws on tipping work. Let’s take a look at federal tipping laws so you can best know your rights and protect your business.

Tips on Tipping

Most federal law on tips is fairly well defined and easily explained. However, at a state level things can get a bit more complicated. As usual, the federal standard is a minimum standard that states can apply additional restrictions on top of. There’s too much there in state law to get into in a single article but the most common one to keep in mind is that minimum wage varies from state to state and even city to city, so where minimum wage comes up in the federal laws you can assume the state or city minimum wage where you live applies to this standard.

A tipped employee, those who would normally be easily added to a tip pool, must regularly make more than $30 a month in tips. Where this is the case, under federal law, an employer can pay these tipped employees as little as $2.13 an hour. However, this doesn’t override minimum wage laws. The tips a given employee is given are taken as a tip credit. This credit is put towards the minimum wage. If the wages an employer pays plus this tip credit leave an employee earning the equivalent or more than minimum wage, the employer is in the clear. If this is not the case, the employer is required to make up the difference. For instance, if an employee worked 10 hours at the federal minimum wage of $7.25 and was tipped ten times that wage ($72.50) then the employer would only have to pay that tipped employee a hourly rate of $2.13 because their tips create a tax credit easily surpassing federal minimum wage. Even if the employee only was given $51.20 in tips over those ten hours, the difference between the $2.13 per hour number and the federal minimum wage, the employer could still get away with paying only $2.13 per hour.

As of now, tips are the sole property of the tipped employee who was given the tip–no matter how much they add up to. It is illegal for an employer to require an employee to hand over any part of their tips or even to make an employment agreement with terms requiring that employee to give them some or all of their tips. The exception to this, at least now, is a valid tip pool-pooling tips and redistributing them equally among employees. However, the tip pool is not an exception to the tip credit rules. If the amount you take out of a tip pool leaves you below minimum wage when your hourly wages are added, your employer still needs to make up the difference.

There a few corner cases that change how these general rules work. First, if you work more than 20% of your hours in a workweek on non-tipped duties then an employer cannot take a tip credit for these hours. Instead, they need to pay at least minimum wage for all these non-tipped hours and the tip credit formula is only applied to your tipped hours.

When you tip with a credit card, an employer can take the percentage charged by the credit card company on each sale out of an employee’s tips. However, this reduced amount and not the full amount is what is used as a tip credit when calculating whether tips take an employee up to or over minimum wage. Also, compulsory charges (think required tips when you have a lot of people eating at once) don’t count towards tips received for a tip credit unless the amount is actually given to the employeee.

Finally, as of 1996, there’s a bit of a boon for the high school and college summer workers. If you are under 20 years old, the minimum wage if you work as a tipped employee is boosted to $4.25 per hour in the first 90 days after you start work. The tip credit still only requires employers to pay the minimum wage of where you live, but no matter what tips you earn you’ll always get at least $4.25 per hour.

Change Is Coming, But Not Here Yet

As mentioned above, the changes to tip pooling are not officially in effect yet. However, with the DoL not enforcing the tip pooling rules the only thing stopping employers is state law on the issue. If you make a large portion of your living from tips, you may see yourself being forced to tighten the belt a little bit in the coming days. New York has laws preventing tip pooling with non-tipped employees. California doesn’t allow employers to take a tip credit whatsoever-requiring full minimum wage on top of any tips earned. However, California does allow for tip pooling.

So the big elephant in the room came from the second paragraph of this article-will employers be able to take your tips outright if they don’t take a tax credit? In theory yes, but it’s far too soon to tell. Not only are the laws not finalized, there are enormous employee morale and publicity issues to think about. Even beyond that, the patchwork of state law and the uncertainty of the current DoL’s eventual position on the issue make any decision to take such action incredibly risky for an employer. So for now, it seems unlikely. However, Trump’s DoL has still dealt a blow to the tipped worker. You may still need to prepare yourself to see less out of your tips each month.

Understanding Trump’s Military Transgender Ban

The relationship between Trump and the LGBT community is a confusing one to say the least–at least for Trump himself. During the election he repeatedly said that he would be better for the LGBT community than Hilary Clinton. At the same time, he went back and forth until finally coming out against transgender people using the bathroom of the gender they identify as. He also told Fox News he would “strongly consider” Supreme Court Justices who might reverse the famous Obgerfell ruling making same-sex marriage a constitutional right. As President he’s rolled back LGBT protections put in place by the Obama administration. During LGBT Pride Month, he decided not to make the now-traditional statement of support to the LGBT community. At this point, it’s pretty fair to say that-at a minimum-LGBT rights are not a priority for Trump.

Trump proved this once again after, just a few days back, he announced–through Twitter of all things–that he intends to ban transgender people from the military. The change, if made official, will have some serious repercussions which are worth taking a look at. With that in mind, let’s take a look at what Trump’s announcement will mean. However, in order to fully understand the implications of the decision, it’s worth starting with a look at the legal history between the LGBT community and the military.

History of the LGBT Community in the Military

The history between the military and the LGBT community has not always been the most friendly one to say the least. In 1921 the military declared homosexuality and “feminine characteristics” could render a man unfit for service. In ’42 the U.S. Selective Service System said that being homosexual disqualified somebody from the draft.

transgender banThings only got worse from there. In 1950, Army Regulation 600-443 made homosexuality an offense subject to court martial. If the person wasn’t “active” (openly gay) and was a “non-aggressive” homosexual (they didn’t have sex with men) they could leave the service with a honorable discharge. Otherwise, they’d either face court martial or be forced to take a dishonorable discharge depending on their situation. Transgender persons faced similar restrictions on service.

In 1972, homosexuality was once again confirmed as grounds for discharge or dismissal under Army Regulation 635-200. Just four years later, a court upheld this as grounds for dismissal in the case of a U.S. Air Force Technical Sergeant.

In four more years, in 1980, a federal district court finally ruled that discharging an Army Sergeant for being homosexual violated her First Amendment rights. The Army, however, chose to ignore the court’s ruling altogether. Eventually, unfortunately for the Sergeant in question, a federal appeals court once again sided with the military and the Supreme Court refused to hear her case. This was the state of the case law for quite some time, the Department of Defense issued directives stating that homosexuals were banned from military service in 1981 then followed up with similar statements three more times over the years–most recently in 2008.

However, even before 2008 there was a fair bit of movement on the state of the law when it came to LGBT persons in the military. The most famous of these changes came in 1993 with the advent of “Don’t Ask, Don’t Tell.” The policy, introduced by President Clinton, wasn’t actually a particularly enormous shift. Being LGBT remained an offense that would get you discharged (often dishonorably discharged) from the military. The policy forbad harassment or discrimination against closeted LGBT persons but still barred openly LGBT people from military service.

It wasn’t until two years into the Obama administration, in 2010, that things finally started really changing for the better. In early 2010, guidelines came out of the Pentagon which slightly increased protection from unproven allegations under “Don’t Ask, Don’t Tell.” However, the real change came at the end of the same year when Congress repealed “Don’t Ask, Don’t Tell” entirely. This lifted the ban of gays and lesbians serving in the military.

The situation was still no better for transgender persons wishing to serve. It would take another six years until their ban was finally lifted in 2016.  It had been a long battle for the transgender community, but they were finally allowed to serve their country if they so chose. Along with this change came access to the military’s medical insurance to help in transitioning genders. This occurred first, and most famously, with well-known military whistleblower Chelsea Manning. However, with Trump’s new change, these benefits are likely to be disappearing after only about a year.

The Effects of the Trans Ban

The obvious effect of Trump’s action-should it be made more official than a tweet-would be to bar transgender people from enlisting in the military. However, the less obvious issue is what will happen to the transgender people who have already joined the military in the last year. The Trump Administration has made it clear that they intend to follow through on Trump’s tweets. However, just how they will has not yet been fully explained.

The advent of “Don’t Ask, Don’t Tell” led to thousands of honorable and dishonorable discharges for homosexual service members. To make matters worse, the discharges often listed “homosexuality” as the reason for their discharge. These discharges are a member of public record, essentially outing these service members to employers or nearly anybody who cared to find out.

Just in the last year, as many as 15,000 transgender people have enlisted in the various branches of the military or came out as openly transgender after it seemed they would not be punished. Now they may face the same fate as the victims of “Don’t Ask, Don’t Tell.”If they end up facing dishonorable discharges it would take away basically all health and education benefits they would otherwise receive from their service.

As it is, military leaders have refused to take any action until the Department of Defense issues official guidelines and formal guidance on how they should proceed. For now, the only real action has been a delay on fully lifting the ban on transgender people in the military until January of 2018-a move that won’t affect people already enlisted. However, if the White House follows through on its plans, the reprieve will be short-lived.

Trump’s tweets cited medical costs and “loss of focus” as justifications for his ban, although he provided no support for these assertions beyond vague references to outside guidance. Trump’s actions may be in response to a bill defeated in Congress earlier this month which would have stopped the Pentagon from paying medical costs related to gender transitioning. Laws both protecting and curtailing these rights continue to develop in Congress from both sides of the aisle. It seems unlikely that the overall costs of allowing transgender people into the military will outweigh the benefit. As former Defense Secretary Ash Carter said when lifting the ban last year, “we can’t allow barriers unrelated to a person’s qualifications prevent us from recruiting and retaining those who can best accomplish the mission.” The very act of threatening a reinstatement of the ban, regardless of whether Trump follows through, undermines this goal. Trump isn’t just undermining the rights of the LGBT community, he’s potentially undermining the military itself.

Will the Real ID Law Prevent You From Flying?

One of the underreported details of the 9/11 attacks is that the hijackers illegally obtained Florida driver’s licenses to board the planes. Although a few of the IDs were forged, most of the licenses were real. The terrorists obtained their licenses by bribing a collaborator to certify their residency and then duplicating the licenses that they obtained. Congress responded to this chain of events by passing the Real ID Act. The Real ID Law requires that state driver’s licenses contain a minimum level of information before the holder is allowed to board an aircraft. For a state license to meet the standards of the Real ID Act, the license must contain:

  • Full legal name
  • Signature
  • Date of birth
  • Gender
  • Unique identifying number
  • Principal residence address
  • Front-facing photograph of the applicant

Additionally, the law also requires that the applicant present documentation of name, birth date, social security number and an ID with a photo or an ID with full legal birth name and birthdate. Yes, a person needs an ID in order to obtain a commonly used ID; but more on that later.

Real ID LawAlthough the Act was passed in 2005, five states, Missouri, Minnesota, Illinois, New Mexico, and Washington, have not updated their driver’s licenses to meet federal standards. This actually isn’t surprising; the Real ID Act was extremely controversial when it was first passed and it was doubtful that any states would actually comply. Missouri went so far as to pass a law in 2009 prohibiting state officials from even considering complying with the Real ID Act. However, the TSA forbids travel with state driver’s license that does not comply with the Real ID Act. People using driver’s license that do not meet the Real ID Act’s requirements would not be able to board a plane.

Alternatives to State ID

States have had a variety of reasons for opposing the ID law.Conservative leaning states saw the Real ID Act as federal overreach; liberal leaning states believe the requirement to have an ID to obtain an ID was discriminatory against minority groups that make less income. People concerned about having their birth date or parts of their social security number have opposed it. As a result, the federal government has often granted extensions to states to meet the requirements. Missouri was granted an extension if it agreed to repeal its Real ID Act ban. The extension would allow Missouri residents to continue using their non-complaint driver’s license until January 22, 2018.

Of course, the Real ID Act only affects driver’s licenses. If you use a driver’s license that doesn’t comply with the Real ID Act, you will be barred from entering the plane unless you have other forms of identification. So even if you live in one of the five states that still refuse to comply, you can always use a passport or an ID issued directly by the Department of Homeland Security to fly. Some states even issue licenses that comply with federal regulations even though they still use the old pre-Real ID Act licenses – check your local DMV for details.

On the other hand, these alternative identifications create additional expenses. Obtaining a passport, ID from DHS, or a state ID that matches the requirements will cost more money. This is a constitutional concern, as the Supreme Court has historically found traveling between states to be a fundamental right. Charging people extra money would potentially burden this right. Unlike voting though, there are other means of moving around the country. It is possible to travel from New York to Missouri by driving a car, riding a bus, or forming a carpool. With states like Missouri reversing their Real ID Act ban, it’s only a matter of time until all state driver licenses are regulated by federal standards.

Voter Fraud Investigation: No Injunction to Stop Data Gathering

In the wake of our most recent election, both sides of the political aisle have been consistently calling foul on the election process itself. On one side, the potential of Russian influence on the election has cast a shadow over the Trump administration. On the other side, Trump himself has repeatedly made unsupported allegations of rampant voter fraud since well before he was even elected. During the election, he claimed there would be millions of illegal votes cast and called upon supporters to act as “poll watchers“–a practice that ended up flirting with violating federal voter intimidation laws.

Since President Trump’s election, he has not changed his tune on the existence of voter fraud in the least. In fact, he has doubled down on the claims by using an executive order to create a Presidential Advisory Commission on Election Integrity to investigate his claims. While Trump has not backed down from his claims, the facts certainly don’t seem to support the rampant voter fraud he describes. In the last 14 years, studies have shown about 241 cases of fraud out of around a billion votes cast. This translates into around .000024% of votes.

What is the Latest in Voter Fraud Claims?

Regardless of these statistics, Trump’s Voter Fraud has taken its role extremely seriously-controversially so. In a recent example of this, the Commission sent out a letter demanding voter roll information from every state in the U.S. This was no small ask. The request would have required turning over the name, partial social security number, address, date of birth, political party affiliation, and–this one’s the kicker–the last ten years of voting history of basically everybody who’s ever voted in this country. To say that turning over this information has the potential for abuse is more than an understatement. The same letter requesting the information said that the documents provided to the commission may eventually be made public, adding another layer to the controversy. As of now, around 20 states have already flatly refused the request. Even Kansas, the home state of the Vice-Chair (and defacto head) of the Voter Fraud Commission Kris Kobach, has only agreed to partially comply with the extreme request. 44 states are going to be withholding at least some of the requested information.

Kris Kobach himself is another part of the controversy surrounding the Commission. As the Secretary of State of Kansas he is well known as an outspoken believer in the voter fraud claims of Mr. Trump. He also has a bit of a checkered history when it comes to voter fraud. Just last month a federal judge fined him $1,000 for “presenting misleading arguments in a voting-related fraud.” He has also pushed through very strict voting laws; laws which have been accused by some of intentionally diminishing minority voting rights.

Voter FraudThis same issue, the potential to suppress minority voters, is a criticism Mr. Kobach’s Commission has also been accused of. There have been a number of lawsuits from groups such as the NAACP and the ACLU accusing the Commission of using “unfounded allegations of voter fraud” to target the voting rights of Black and Latino voters. One of their complaints specifically alleged that “the creation of the Commission, and its pending investigation into allegations of voter fraud, were motivated by racial discrimination against voters of color.”

Earlier this month however, in a suit brought by Lawyers’ Committee for Civil Rights Under Law (LCCRUL), these lawsuits took their first big loss. LCCRUL’s lawsuit ultimately seeks to shut down the operations of the Commission altogether as well as force them to return all information they had gathered, and destroy all copies of that information. However, this sort of a lawsuit takes time. For now, they had filed a motion attempting to require the Voter Fraud Commission to hold an open meeting and disclose records about the goings on and goals of the Commission. A Federal Judge shot the request down.

The FACA and Preliminary Injunctions

The essential elements of the claim against the Voter Fraud Commission revolved around two things: a fairly obscure law known as the Federal Advisory Committee Act (FACA) and the special nature of a motion seeking a preliminary injunction (a ruling forcing a party to do or not do something before the case is actually litigated.)

The FACA essentially is a set of transparency requirements on advisory committees such as the one under Mr. Kobach. It requires public charters before holding meetings, timely notice of those meetings to the Federal Register so their times can be published, hold meetings open to the public, keep minutes for those meetings, and allow those who want t to attend or file statements with the committee. FACA also requires much of the paperwork and documents generated by such committees be available to the public for viewing and copying. Finally, the law requires advisory committees to be fair and balanced–not overly influenced by an the person who made it, a special interest, or any particular point of view.

LCCRUL was essentially arguing that the Voter Fraud Commission wasn’t holding sufficiently transparent meetings or making it’s records properly available to the public. Unfortunately for them, this simply does not seem to be the case. The Commission filed a charter, noticed their meetings with the Federal Register, and made the meetings available to the public through live streaming on the internet. On the other hand, they didn’t give an opportunity for people to speak or comment on their first meeting–simply promising to do so in the future. They also have failed to respond to requests from the public to look into documents regarding their goals and methods.

You can see, there’s mixed facts here when it comes to the FACA–and that’s what did this preliminary injunction in. In order to succeed in making a court tell a party to do or not something before fully proving your case you understandably need to show that you’re more likely than not going to win if you were to take the issue to court. If we didn’t have such a high standard, preliminary injunctions would be particularly vulnerable to abuse. The truth is there are facts here that could support an argument that the Voter Fraud Commission has not lived up to its FACA obligations. However, the case is far from strong enough to reach the likelihood of success required for this sort of motion–it’s no surprise the court refused to take such drastic action.

The Future of the Voter Fraud Commission

So, you may be asking if this is the beginning of the end for the efforts taken to curtail the actions of the Voter Fraud Commission. However, the fact that the high standards of a preliminary injunction were a bridge too far in this particular case doesn’t make it a death knell for the many lawsuits brought against the Commission. Even in this ruling, the court noted several times how controversial the Commission is. The judge especially noted the sheer amount of information the Commission seeks to gather on voting history.

What’s more, the ruling here was made without prejudice. This means that, while the facts here weren’t enough when the court considered how much harm might be done by not opening this meeting to the public, if the facts change the issue may be revisited. There is a lot of ground left to cover in this lawsuit and in the several other like it. After all, the motion has preliminary right in the name.

Medical Marijuana Use by Off-Duty Employees with Disabilities are Now Protected in Massachusetts

As marijuana has become legalized in more and more areas and manners, more and more rulings have come out saying that this still doesn’t mean an employer can’t fire you for using marijuana. We’ve talked at length about this phenomenon and what it means for you in the past-in fact we’ve dealt with the overruled lower court’s approach to this very same case. The trend in rulings, allowing employers to punish medically prescribe, legalized, behavior done when not at duty for work is a bit of an odd trend. You can imagine the uproar if courts took a similar approach to off-duty drinking of alcohol which doesn’t impact on-duty performance-never mind off-duty use of a prescribed medication.

However, just this last week the Massachusetts Supreme Court has taken a huge step as far as protecting Massachusetts employees based on medical marijuana use. They ruled it was handicap discrimination to fire a woman for using medical marijuana to combat low appetite resulting from Crohn’s disease. Let’s take a look at the facts in this legal first and what exactly the ruling means for the rights of Massachusetts employees and in a broader context.

medical marijuanaThe Firing of Ms. Barbuto

The case deals with one Ms. Cristina Barbuto, a women suffering from Crohn’s disease-an incurable ailment affecting the lining of the digestive tract . Crohn’s causes extreme intestinal discomfort, weight loss, fatigue, and other painful symptoms. As a result of her Crohn’s, Ms. Barbuto had serious appetite issues-losing dangerous levels of weight. She was eventually prescribed medical marijuana for her appetite and was able to once again reach a healthy weight.

Ms. Barbuto was offered a job with a company called Advantage Sales Marketing (ASM). The caveat to this job offer was that she needed to get and pass a drug test. Ms. Barbuto told them she was a legally prescribed medical marijuana patient and that the test would come back positive. She explained the details of her Crohn’s and also told them that her marijuana use was not daily, nor would she use it before or at work. Her typical use was low doses in the evening to improve her appetite before dinner.

The person from ASM told Ms. Barbuto that her marijuana use was unlikely to be an issue but that she would check and follow-up. After follow-up, the same person from ASM confirmed it wouldn’t be an issue.

Ms. Barbuto reported to her first day of work, worked a day without incident, then was contacted by HR and fired her for failing her drug test. When she mentioned she was legally prescribed the medical marijuana she was told that ASM “follow[s] federal law, not state law.” She then sued ASM for handicap discrimination.

The Ruling of the Court

Under Massachusetts law, and in general, it is illegal to fire or refuse to hire a handicapped person because of that handicap so long as they can perform the essential functions of the job in question if the employer makes reasonable accommodations for their handicap. A reasonable accommodation is basically any accommodation that does not cause undue hardship to the employer-usually by being extraordinarily expensive or difficult to accomplish. Once somebody establishes that they have a valid handicap it’s on the employer to prove that accommodations would be unduly difficult.

Under Massachusetts law, Crohn’s disease is explicitly included as a dehabilitating medical condition qualifying one for medical marijuana use. Thus, the Massachusetts Supreme Court felt it was pretty clear that Ms. Barbuto had a valid handicap.

ASM argued that a reasonable accommodation can’t exist because marijuana use of any type is a federal crime. This is a stance that has been successful in a number of states including California and Colorado. However, the Massachusetts Supreme Court felt that even if their drug policy forbids marijuana, ASM had to at least help the handicapped employee find an equally effective medical alternative. This process is a mandatory part of making reasonable accommodations for a Massachusetts employer. Where no equally effective alternative exists, the employer has to prove that the use of the forbidden medication-in this case marijuana-would cause them undue hardship before they can ban the medicine without committing handicap discrimination.

ASM’s argument essentially boiled down to saying federally illegal means the accommodation must be unreasonable and they don’t need to find alternatives. This most recent ruling reversed lower rulings and said no on both counts. The act legalizing medical marijuana in Massachusetts specifically says that patients can’t be denied any right or privilege due to the nature of their medicine. While the act doesn’t require accommodation of using marijuana on the job, partially because federal law specifically punishes businesses which allow drug use during work hours, this wasn’t an issue here as all use was done off-duty.  What’s more, the Court here ruled that the existence of a restriction on on-duty use implicitly allowed for off-duty use.

The Rulings Impact and the Larger Context

The Massachusetts Supreme Court has reversed the lower court and provided protection for off-duty use by employees legally prescribed medical marijuana. However, it’s important to note how specific the ruling is. Any use on-duty is clearly not protected and it is even arguable that if an employer offers to help find alternative medication they are still free to ban medical marijuana outright. Recreational marijuana use is obviously still completely unprotected, legalized or not and off-duty or not.

The ruling bucks the trend towards non-protection, but Massachusetts isn’t the first state to take steps towards protecting medical marijuana use by employees. Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, and Nevada all protect such use to at least some degree-requiring employers to accommodate use. As marijuana legalization continues to spread at the state level-the Massachusetts Supreme Court noted in their ruling that almost 90% of states have legalized medical marijuana at this point-this tension will continue to grow. If marijuana becomes as commonly legalized as alcohol, questions will certainly start to arise over whether an employer would be able to regulate an employee’s off-duty drinking. The law around marijuana is frankly incredibly unstable as long as it remains federally illegal. For now, the laws will have to keep evolving as a patchwork of inconsistent state law.