Alexandria, VA

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By John V. Berry, Esq.

The President recently proposed a new federal rule which will affect the wages of employees who earn tips.

The new rule was proposed on October 8, 2019 by the Department of Labor (DOL) and would permit employers to require widespread sharing of tips with other types of co-workers. One of the major industries affected would be the foodservice industry. The newly proposed rule would permit employers to share wait staff tips with food preparation staff and others (e.g. dishwashers, food delivery personnel).

Difficulties With the New Tip-Pooling Rule

A problematic part of the newly proposed rule would give employers newfound flexibility in assigning non-tipped assignments to workers who rely on gratuities for the major portion of their income. The restaurant lobbying industry has sought these types of changes for some time. Former President Obama’s Administration had previously mandated that tips belonged to the workers that received them.

One of the major problems with the new rule, for employees that earn tips is that it takes funds earned by them and transfers them to employees that don’t earn tips. By doing this, restaurant owners are potentially able to compensate food staff (non-tip earners) with lower salaries.

Tipped Employees Wages will be Affected

The DOL, in their proposal, even acknowledges that the new rule will result in tipped employees spending more time on lower-paying duties:

“The removal of the twenty percent time limit may result in tipped workers such as wait staff and bartenders performing more of these non-tipped duties such as ‘cleaning and setting tables, toasting bread, making coffee, and occasionally washing dishes or glasses.’ …Tipped workers might lose tipped income by spending more of their time performing duties where they are not earning tips, while still receiving cash wages of less than minimum wage.”

Employers will Gain

Employers will gain from the situation and may be able to provide lower salaries to non-tip earners, offsetting the loss with tip income. The DOL also provides the real rationale for the change in the proposed regulation: “[E]mployers that had been paying the full minimum wage to tipped employees performing related, non-tipped duties could potentially pay the lower direct cash wage for this time and could pass these reduced labor cost savings on to consumers.”

The proposal should become final in about 6 weeks and could have some changes in the final version. However, if a new administration comes in, the tip-pooling policy could potentially change once again.

Conclusion

If you are in need of employment law representation or advice, please contact our office at 703-668-0070 or through our contact page to schedule a consultation. Please also visit and like us on Facebook or Twitter.

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This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By John V. Berry, Esq.

We represent employees in Virginia who have been fired from their employment. Sometimes, our representation involves claims against the employer and/or negotiations and other times it involves the issue of how they obtain a new position in light of their termination.

The following are 7 tips to consider if an employee ever finds themselves in this particular situation.

Handle Termination Day Calmly

When an employee is terminated, it can be an extreme shock. Sometimes the reasons are known, sometimes the employee is specifically informed about the underlying issues, and other times they really cannot figure out why. In any case, it is very important to handle termination day with as much grace as possible.

Be calm, follow any reasonable instructions and be polite as you leave. Doing so will help the former employee in the future when they are applying for other work. We have represented many employees where termination day ended up badly and the employer made additional notes in their personnel record or even contacted the police.

If Wrongful Termination is Potentially Involved, Obtain Legal Advice

When an employee has been fired, it is important for them to consider all of their options. If there has been a potential illegal action taken by the employer against the employee (e.g. firing the employee for whistleblowing or based on illegal discrimination) it is important to get legal advice about whether or not to pursue any legal options about the termination.

If a wrongful termination exists, there may be ways for an attorney to resolve the matter with the company in a way that makes the employee more readily employable.

Where Appropriate File for Unemployment Compensation

If an employee is terminated unjustly, it can be worth it for them to apply for unemployment compensation while they are finding a new position. Sometimes, employers decline to object to compensation or fail to show up at such hearings. In many cases, employees can be awarded unemployment compensation even if they have been fired.

Prepare an Updated Resume

When an individual who has been fired starts the job search, it is important to work on their resume. Even though the individual has been terminated, it is important to update their resume and list all of their experience and any skills or education gained from the past employer. The sooner this is done, the quicker the ability to rebound becomes.

Write a Note to the Former Supervisor

While this may be difficult, writing a thank you note to a former supervisor can go a long way to mitigating what they may say to another employer. This can be difficult, especially if the employee was treated unfairly, but it can pay significant dividends in terms of future employability. Many supervisors, even if they fire an employee will feel some guilt in doing so.

If an employee responds with a kind letter to them, it can go a long way in mitigating any bad feelings. I find that when terminated employees take this step, many former supervisors will provide them recommendations when they apply for other positions.

Use Other Contacts as References if Needed

Sometimes a supervisor will not provide a reference for your prior employment. In that case, it is important to find others who can potentially vouch for an employee’s service during their prior employment.

For example, sometimes a former supervisor who is no longer with the employer is willing to provide a positive recommendation. In other instances, former co-workers can sometimes provide a recommendation as well.

Practice Job Interviews

When trying to get a new position after being fired, it is important to practice interview skills. It is also particularly important to be able to explain the termination if need be, and to provide other references. It is usually good advice to stay away from sounding defensive or vindictive toward the former employer in explaining the reasons for termination.

A calm and neutral explanation of the termination is usually the best strategy. However, practicing the delivery is very important.

Take an Interim Job if Necessary

Sometimes, when a termination is based on difficult facts for the former employee, it can be important to take a less than ideal employment position to bridge the gap from the termination.

Basically, in this type of situation, the employee takes a position that either doesn’t pay as much as they are used to or where they are overqualified in order to have a current position on their resume as they apply to their ideal position later. This often alleviates or minimizes future concerns from the prior termination.

Conclusion

If you are in need of employment law advice or representation, please contact our office at 703-668-0070 or through our contact page to schedule a consultation. Please also visit and like us on Facebook or Twitter.

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