In recent weeks, the subject of employee tipping has received considerable attention in the media. There have been lawsuits in California, Massachusetts, and other states which should serve to remind employers about the importance of knowing and then following State and Federal laws on tipping.

In California, there are three critical rules which must be followed by employers:

1. No manager may take any portion of a tip left for an employee;
2. An employer may not offset any credit card processing fee against a tip left by a customer for an employee; and
3. Absolutely no portion of any tip received by any employee may be offset against the minimum wage of $8.00 per hour paid to an employee.

It is worth noting, however, that in California, a service charge by the business owner is not considered a tip for purposes of the California Labor Code provisions dealing with tipping.

There is still some controversy in California concerning the subject of tip pooling. Tip pooling is not automatically illegal in California. The controversy arises over what type of tip pooling arrangement is allowed.

The California Division of Labor Standards Enforcement has traditionally took the strict view that in order for an employee to participate in the tip pool, he or she must render direct table service. Such a rule is both artificial and unworkable.

Take for example, the customer who orders a drink from his table. Should it make a difference in any tip pooling arrangement whether the bartender brings the drink to the table or whether the server delivers the drink?

Another example - in those restaurants where the cooking of the food is in plain view of the customers, should the cooks be prohibited from having even a small percentage of the tip?

Finally, if the dishes on which the food is served are not clean, then the customer will not enjoy the dining experience. Thus, should the dishwasher receive a tiny percentage from the tip pool?

In recent years, the Courts, especially the Federal Courts have rejected the artificial "direct table service" distinction. Rather these decisions leave it to the restaurateur to adopt a tip pooling plan. So long as that tip pooling plan is reasonable, it is likely to be upheld by the Courts. Obviously, the server should get the lion's share of any tip, with smaller percentages going to those who participate in the dining experience.

Given the attention that tipping and tip pooling has received in recent weeks, this is a good time for all employers to review their tipping and tip pooling practices to ensure that such practices are consistent with both State and Federal law.

By: Russell Thomas
Attorney at Law
THOMAS & ASSOCIATES
4121 Westerly Place, Suite 101
Newport Beach, California 92660
Tel: (949) 752-0101
Fax: (949) 257-4756
Email: rthomas@rjtlawfirm.com
Web: http://www.rjtlawfirm.com

J.D., Harvard Law School, 1967

Specializes in Employment Law and Litigation;Offices in Southern California (Los Angeles and Orange County)

Sexual harassment is a legal term which is defined as the unwanted, unwelcome sexual advances of another person. While sexual harassment is never acceptable, it becomes an even larger problem when it occurs in the workplace or at school, and in those environments are the only places laws cover. There are many situations in which sexual harassment can occur, but the following are the most commonly reported.

Facts About Sexual Harassment

The victim does not have to be the opposite sex of the aggressor. Same-sex sexual harassment complaints are receiving more and more attention nationwide. Same-sex harassment is accepted as a valid and punishable form of harassment in the workplace.

A common misconception is that the harasser is typically the supervisor or in some way superior to the harassed. Anyone can be harassed by anyone else that they work with, regardless of their situation or station at the place of employment.The harassment must be unwelcome. A prior relationship between the aggressor and the harassed should not have taken place, or the validity of the claim may be questionable.

The victim is not necessarily the one who was harassed but could, in fact, be anyone who was affected in a negative way. Another office worker who was offended by the conduct or comments of his or her co-workers could in fact file charges against and receive restitution from their company and co-workers.

Two Legally Recognized Forms of Sexual Harassment

There are two legally recognized forms of sexual harassment, quid pro quo and hostile environment sexual harassment.

The most common is Quid Pro Quo, which roughly translated from the Latin means "something for something." This type of harassment occurs when a persons' acceptance or rejection of the sexual advances of another individual determines the victim's economic advancement or job advancement. In proving this type of sexual harassment, the victim needs to demonstrate that there was a threat of economic loss due to the harassment. Putting employees in that situation not only affects those involved with the harassment, but also affects overall job morale and productivity.

Hostile environment sexual harassment happens when unwelcome sexual conduct occurs in the workplace and makes the work environment hostile and demanding. The workplace may involve sexual graffiti, repeated sexual advances or offensive language. While this type of harassment may not result in a tangible loss of job or promotion, the environment of working under this type of sexual harassment has serious implications for the employees' mental health.

By: Joseph Devine
If you have been sexually harassed and would like more information concerning this crime, contact http://www.orangecountyemployment.com for more information and to have all of your questions answered.

In a recent decision, a California Court of Appeals faced the challenge of applying the California Labor Code to an incentive compensation plan adopted by an employer for its employees. In his lawsuit, an employee who quit his employment with a financial brokerage company, claimed that the forfeiture provisions of the employer's incentive compensation plan violated the Labor Code, and that the enforcement of these forfeiture provisions against the employee who quit before vesting, constituted conversion of the wages he had earned.

In this case, the employer established an incentive compensation plan which allowed participating employees the option of using a portion of their annual earnings to purchase shares of stock in the employer's parent company at a price below the stock's publicly traded market price. Under the plan, if the participating employee resigned or was terminated for cause within a two-year vesting period, the employee forfeited the stock as well as the money used to purchase the stock.

In this case, prior to the completion of the two-year period, the employee voluntarily terminated his employment with the company, and consequently forfeited 82 shares of restricted stock, as well as the money used to purchase those shares.

A California Court of Appeals found that, as a matter of economic reality, employees who elected to participate in the stock-purchase program were paid all the wages the employees designated to invest in company stock. While the employee was not paid directly, that money was used to purchase the restricted stock. Those funds were deducted from the employee's pay for the purpose of purchasing stock, pursuant to the employee's request and at his explicit authorization. The Court ruled that such a deduction was lawful under the Labor Code.

The Court found that even if the employee was paid in part in shares of restricted stock, rather than cash, the plan's forfeiture provisions were lawful. Even if the Court accepted the employee's contention that he was never paid his wages, either in cash or in the form of shares of restricted stock, his claim of unlawful forfeiture of earned wages would still be rejected because the employee could not show that the funds used to purchase the shares were actually earned. The Court ruled that there was no unlawful forfeiture of earned wages because either the employee was paid all his compensation, either directly or indirectly through a deduction that he requested and expressly authorized, or he did not earn the shares or the money used to purchase the shares because he left the employer prior to the two-year period required for vesting under the plan.

By: Russell Thomas
Attorney at Law
THOMAS & ASSOCIATES
2172 Dupont Drive, Suite 203
Irvine, California 92612;
Tel: (949) 752-0101
Fax: (949) 257-4756
Email: rthomas@rjtlawfirm.com
Web: http://www.rjtlawfirm.com

J.D., Harvard Law School, 1967

Specializes in Employment Law and Litigation;
Offices in Southern California (Los Angeles and Orange County)

Sexual harassment is unlawful under federal and state statutes. You may have heard the expression that distinction between sexual harassment and no sexual harassment is dependent on the attractiveness of the perpetrator and to a large extent this is true. If the conduct or environment is sexual in nature and it is unwanted then it is sexual harassment.

There is a difference between sexual harassment and gender based discrimination. Gender based discrimination and sexual harassment are not the same thing, and a claimant can have a gender based discrimination claim as well as a sexual harassment claim. Under California law sexual discrimination requires the claimant prove a tangible job related benefit has been lost. The claimant must show there was discrimination in compensation, or terms, or conditions, or privileges of employment. In a sexual harassment claim, the claimant is not required to prove a loss of a tangible benefit. Also, keep in mind that neither sexual harassment nor gender based discrimination is limited to claims by women. Men likewise are protected and can also make claims. Men generally do not make claims, for fear of embarrassment or other personal reasons, but they are just as likely to be harassed as women are.

California law also specifically requires employers to take affirmative action to prevent sexual harassment on the basis of sex or sexual orientation. Federal law does not protect against harassment, because of someone's sexual orientation, but California specifically prohibits sexual harassment because of someone's sexual orientation, therefore gays and lesbians are specifically protected and any type of sexual harassment against these groups is unlawful.

The federal statutes and courts defined sexual harassment one way and the State of California defines in a different way. The California Supreme Court has defined harassment as conduct that is outside the scope of the necessary job performance, conduct that is presumably engaged in for the perpetrators owns personal gratification, or because of meanness, or because of bigotry, or because of other personal motives.

The California Fair Employment and Housing Commission has been authorized to adopt and promulgate regulations to interpret the statute that addresses sexual harassment. The department of Fair Employment and Housing has defined three different kinds of sexual harassment. There is verbal harassment, there is physical harassment, and there is visual harassment. Verbal harassment includes epithets, derogatory comments or slurs, repeated romantic overtures, sexual comments and jokes, or prying into another's personal affairs. Meaning an individual cannot comment about another persons physical characteristics, cannot repeatedly ask another person for dates, cannot make dirty jokes, cannot ask about another's sexual activity or personal plans for the evening or the weekend.

Physical sexual harassment includes unwanted touching, rubbing against someone, assault and physical interference with movement or work. Among other things a co-employee or supervisor cannot touch another, cannot rub his body another, block another's path, restrict another's movement, or sit on someone's desk to prevent them from doing work.

Assault means threatened contact with another person with the perpetrators body or an object in possession or control of the perpetrator. Visual harassment includes derogatory cartoons, drawings or posters, lewd gestures or leering. Another employee cannot have cartoons that are sexual in nature whether explicit or implicit regardless of whether is written expression or drawings. Leering has been deemed to constitute sexual harassment, looking at women's crotches or men's crotches, or women's breasts for prolonged periods of times, would be sufficient to constitute sexual harassment. Keeping a collection of centerfolds or sexual cartoons on the walls would constitute sexual harassment.

Sexual harassment covers virtually everyone. The Fair Employment and Housing Act exempts nonprofit hospitals and health care facilities owner or affiliated by religious organizations from some requirements, but not from sexual harassment.

Under California law sexual harassment as well as retaliation is prohibited. Meaning if someone files a complaint for sexual harassment, and after investigation it turns out the accusations or claims are erroneous, the person cannot be retaliated against. Meaning you cannot fie someone that files or makes a complaint for sexual harassment it would lead to a valid complaint for wrongful termination. California law also protects independent contractors providing services in accordance with a contract, and also it protects job applicants.

California law also differs significantly on coverage based on number of employees, under California law sexual harassment applies to all employers, as compared to discrimination laws which apply only to employers with five or more employees, and federal laws which applies to employers with 15 or more employees.

The employer becomes liable for sexual harassment, because of if what is called vicarious liability, meaning the employee, supervisor, manager, or officer is acting for the employer. Therefore the actions of the employee are the actions of the employer. If the harassment resulted in an adverse employment action against the employee, the employer is automatically vicariously liable under the theory of vicariously liability, if not the employer may have a defense.

There are many exceptions that make an employer liable and that provide a defense for employer, but the best way to determine it a claimant has a claim or a employer has a defense is to consult an attorney. Sexual harassment is a very broad area of law entailing may different details. There are means of minimizing the risk to the employer and every employer should be familiar with this area of law, since it covers every employer in California. All employers should consider proving training or seminars from an attorney for all employees regardless of the size of the organization.

By: Arnold Hernandez
www.arnoldhernandez.com
Want to know what not to ask prospective employees at a job interview? Visit Attorney Arnold Hernandez' website. Attorney Arnold Hernandez represents small business and individuals in unpaid misappropriation of trade secrets, overtime wage claims, unpaid wage claims, rest and meal period violations, car accidents, truck accidents, motorcycle accidents, and other civil matters.

Contributed by:
Syan Warner
Attorney Directories