What can I do as an unemployed restaurant worker during the coronavirus?

If you were a restaurant or service industry worker who is now unemployed, please first apply for unemployment assistance. You can do so here: https://www.ezarc.adws.arkansas.gov/

To be eligible, you must be:

Unemployed,

Physically and mentally able to perform suitable work,

Available for suitable work,

Making a reasonable effort to find work,

Free of participation or direct interest in a labor dispute, and

Free of disqualification

ABLE TO WORK means being physically and mentally able to perform work similar to work you performed in the past or other work for which you are fitted by experience and training to perform and have a reasonable expectancy of obtaining.

AVAILABILITY FOR WORK means being ready to accept work at once, and there are not circumstances, personal or otherwise, which would prevent you from accepting suitable work.

REASONABLE EFFORT TO FIND WORK means making personal efforts to secure suitable work by contacting persons with hiring authority, union local, etc., or doing those things reasonable for you to do in regard to your occupation which would result in your finding employment as soon as possible.

After a reasonable period of time, you must expand your efforts and seek work in related fields which utilize a lesser skill.

What if I think I am owed more money from the restaurant even after unemployment?

Employers remain prohibited from keeping tips received by their employees, regardless of whether the employer takes a tip credit. In addition, employers electing to use the tip credit provision must ensure tipped employees receive at least the minimum wage when direct (or cash) wages and the tip credit amount are combined.

If an employee’s tips combined with the employee’s direct (or cash) wages do not equal the minimum hourly wage, the employer must continue to make up the difference  For further explanation, see here: https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/fab2019_2.pdf

You may be owed minimum wage or overtime payments if a tip credit/pool is handled unlawfully.

Should I be paid more a a server?  It depends on what Duties A Server Can Perform Under the Tip Credit Rules

Whether you may be owed money depends in part according to the Department of Labor on whether the extra duties assigned to you as a servers are directly related to the servers’ “tip-producing occupation.”

The U.S. Department of Labor recently re-issued a previously-withdrawn opinion letter dealing with this subject. This Department of Labor opinion letter considers the job duties listed in the Occupational Information Network database, O*NET, available at https://www.onetonline.org/, to determine whether duties are directly related to a tip-producing occupation.

Tipped employees can perform any of the job duties listed in the “tasks” section of the Details report for their occupation in the O*NET database, without regard to whether they involve direct customer service, 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.” For “waiters and waitresses”, this includes such tasks as setting up and cleaning tables and restrooms, among others. (See the O*NET report for waiters and waitresses for the full list.) Conversely, employers cannot take the tip credit for any work not included in the O*NET task list.

Duties count as “directly related” to a server’s tip-producing job if performed while a server is also waiting tables, or immediately before or after the meal service.

However, if you as server were called in to clean the dining room and restrooms on a day when the restaurant is closed, you would likely have to be paid the full minimum wage for that time.

Likewise, a server who is asked to help enter payroll on a slow night may have to be paid at the full minimum wage for any time spent on that work, because entering payroll is not among the tasks included in the O*NET task list.

It is important to note that DOL opinion letters represent the agency’s interpretation of the law at the time of the letter. They are not themselves legally binding. Courts may or may not agree with the DOL’s interpretation of the law.

In light of these uncertainties, it is important to speak with an employment law attorney familiar with wage and hour laws and your specific situation.

wh Law frequently reviews vendor and sale contracts for family-owned and small businesses.  We do so to ensure that the contract is clear and to ensure that the contract actually provides protections for you.

In addition, wh Law drafts contracts for employers looking to provide contracts to their employees.

In doing so, wh Law draws on its experience litigating employment law cases. We’ve litigated numerous employment cases through the years.  We have learned how the language actually plays out before the court and arbitration systems. While some individuals focus on drafting contracts, they might not have seen what happens with their language when litigation happens. Our unique experience allows our firm to provide practical and real-world counsel to our small-business contract clients.

The language in the contract is crucially important. Even one word in a small-business contract can make the entire contract worthless for the business owners

In other words, just because you have a contract doesn’t mean you have security.

An initial contract review usually takes a few hours. Consultations can be held in person or over the telephone. We will review your contract, provide a summary of its meaning, and identify any problem language that may exist. We can also negotiate with your vendors or suppliers regarding a contract to try and create a final document that protects your interests. If you are starting from scratch, we can also draft an employment contract for you to present to your employees.

To schedule an employment contract review, click here.

What is in an Employment Contract?

Employees that have entered into an employment contract with their employer are typically provided with several legal rights determined by the contract at issue. These rights range from compensation amount and structure to limits on the timing and grounds for a termination. Disputes or questions often arise over contractual language and the meaning of specific terms in the contract. Given the stakes involved with the meaning of even one sentence or word in a contract, contract disputes can quickly lead to litigation.

Do I need a good drafting and employment law attorney in my area?

Yes. Chris Burks is an experienced employment law attorney. He is a member of the National Employment Lawyers Association. Chris has represented thousands of employees in employment law cases across the country. His articles on employment law have been published. He knows the labor and employment laws well and will not stop fighting for your rights.

WH Law frequently reviews employment contracts for managers, doctors, and other professionals to ensure the contract is clear and to ensure that the contract actually provides protections.

In addition, WH Law drafts contracts for high-level employees and for small employers looking to provide contracts to employees.

In doing so, WH Law draws on its experience litigating employment law cases. We’ve litigated numerous employment cases through the years. We have learned how the language actually plays out before the court and arbitration systems. While some individuals focus on drafting contracts, they might not have seen what happens with their language when litigation happens. Our unique experience allows our firm to provide practical and real-world counsel to our employment contract clients.
Most Arkansans work their entire lives without an employment contract. But for those employees that have the opportunity to have an employment contract governing the work relationship, the language in the contract is crucially important. Even one word in an employment contract can make the entire contract worthless for the employee.

In other words, just because you have an employment contract doesn’t mean you have security.
An initial contract review usually takes a few hours. Consultations can be held in person or over the telephone. We will review your contract, provide a summary of its meaning, and identify any problem language that may exist. We can also negotiate with your employer regarding a contract to try and create a final document that protects your interests. If you are starting from scratch, we can also draft an employment contract for you to present to your employer.
To schedule an employment contract review, click (here).

What is in an Employment Contract?

Employees that have entered into an employment contract with their employer are typically provided with several legal rights determined by the contract at issue. These rights range from compensation amount and structure to limits on the timing and grounds for a termination. Disputes or questions often arise over contractual language and the meaning of specific terms in the contract. Given the stakes involved with the meaning of even one sentence or word in a contract, contract disputes can quickly lead to litigation.

Who is protected by an Employment Contract?

Employees that typically have employment contracts include doctors, corporate executives, and highly skilled professionals. These types of professions typically enter into a contract of employment at the beginning of employment which provides a term and compensation structure for that term. Employment contracts often also include non-compete agreements, non-solicitation agreements, and non-disclosure agreements.

However, in Arkansas, most employees do not have employee contracts and are subject to employment at will, which means that an employer may change or terminate employment for almost any reason at any time. While many employees receive offer letters and sign a number of agreements when they begin an employment, these agreements usually do not provide them with contractual rights that take them outside employment at will.

Some agreements or promises by an employer, even if they do not change the employment at will environment, may provide contractual rights to certain benefits.
Do I need a good employment law attorney in my area?

Yes. Chris Burks is an experienced employment law attorney. He is a member of the National Employment Lawyers Association. Chris has represented thousands of employees in employment law cases across the country. His articles on employment law have been published. He knows the labor and employment laws well and will not stop fighting for your rights.

WH Law frequently reviews employment contracts for managers, doctors, and other professionals to ensure the contract is clear and to ensure that the contract actually provides protections.

WH Law also drafts contracts for high-level employees and for small employers looking to provide contracts to their employees.

In doing so, we draw on our experience litigating employment law cases. In litigating numerous employment cases over the years, we have learned how the language actually plays out before the court and arbitration systems. While some individuals focus on drafting contracts, they might not have seen what happens with their language when litigation occurs. Our unique experience allows our firm to provide practical and real-world counsel to our employment contract clients.

Most Arkansans work their entire lives without an employment contract. But for those employees that have the opportunity to have an employment contract governing the work relationship, the language in the contract is crucially important. Even one word in an employment contract can make the entire contract worthless for the employee.

In other words, just because you have an employment contract doesn’t mean you have security.
An initial contract review usually takes a few hours. Consultations can be held in person or over the telephone. We will review your contract, provide a summary of its meaning, and identify any problem language that may exist. We can also negotiate with your employer regarding a contract to try and create a final document that protects your interests. If you are starting from scratch, we can draft an employment contract for you to present to your employer.

To schedule an employment contract review, text or call.

What is in an Employment Contract?

Employees that have entered into an employment contract with their employer are typically provided with several legal rights determined by the contract at issue. These rights range from compensation amount and structure to limits on the timing and grounds for a termination. Disputes or questions often arise over contractual language and the meaning of specific terms in the contract. Given the stakes involved with the meaning of even one sentence or word in a contract, contract disputes can quickly lead to litigation.

Who is protected by an Employment Contract?

Employees that typically have employment contracts include doctors, corporate executives, and highly skilled professionals. These types of professions typically enter into a contract of employment at the beginning of employment which provides a term and compensation structure. Employment contracts often also include non-compete agreements, non-solicitation agreements, and non-disclosure agreements.
However, in Arkansas, most employees do not have employee contracts and are subject to employment at will, which means that an employer may change or terminate employment for almost any reason at any time. While many employees receive offer letters and sign a number of agreements when they begin a new job or career, these agreements usually do not provide them with contractual rights that take them outside employment at will.

Some agreements or promises by an employer, even if they do not change the employment at will environment, may provide contractual rights to certain benefits.

The Court system makes thousands of restaurants all over the country pay back workers money the workers are owed.

The U.S. Department of Labor found that in one two-year period, over eighty percent of restaurants violated labor and employment laws. (Click here to read more about that study)

If you’re a restaurant employee, we’ve found out that restaurants often violate the your rights by:

 Paying you less than the minimum wage
 Paying you the server or front-of-house minimum wage for non front-of-house work (For example, paying you $2.31 per hour to roll silverware or wash dishes)
 Refusing to pay you for overtime work
 Failing to give you a meal break
 Requiring you to work even when you’re off the clock

What is the law that applies to restaurant workers?

The regular minimum wage laws don’t apply to “tipped” restaurant workers (workers that earn a significant part of their income from customer tips).
Federal law says that employers can pay tipped workers as little as $2.13 an hour so long as their tips bring them up to at least the federal minimum wage of $7.25. This means that tipped workers are often at risk for not being paid lawfully.

Why are tipped workers’ wages not paid?

Restaurant workers are often required to work off-the-clock, both before and after their assigned shifts. Restaurant also direct workers to perform work that would not generate tips – think cleaning and side work that is usually someone else’s duty – without paying proper wages for such work.
Also, restaurants skim workers’ tips and keep a portion for themselves or the restaurant.

What are the specific issues?

All types of restaurants: Well-known restaurants such as Olive Garden, Red Lobster, Longhorn Steakhouse, Bahama Breeze, Burger King, TGI Friday’s, Dave & Buster’s, McDonald’s, and Jack in the Box all have been sued for not paying their tipped workers appropriately.

Tip credit: A tip credit means a restaurant may pay a tipped employee a lower direct cash wage and count a limited amount of the employee’s tips as a partial credit to satisfy the difference between the direct cash wage and the federal minimum wage. But employers may not take a tip credit for time spent performing certain tasks.

Tip pool: A valid tip pooling or sharing arrangement among employees who customarily and regularly receive tips, such as waiters, is allowed in only some circumstances, so be weary.

Should you contact a wage-and-hour attorney?

Yes. Chris Burks is an experienced wage-and-hour attorney. He is a member of the National Employment Lawyers Association. Chris has represented thousands of employees in employment law cases across the country. His articles on employment law have been published. He knows the wage-and-hour law well and will not stop fighting for your rights.

What does age or gender discrimination mean?

Laws protect against being fired for your age and gender and many other reasons.
The Age Discrimination in Employment Act (ADEA) protects many employees forty years and older from discrimination in hiring, firing, and terms and conditions of employment based on age.

The Equal Pay act (EPA) requires that men and women be paid the same by a business where they perform the same duties. This doesn’t mean that the jobs have to be the exact same, but the need to be substantially equal. So you need a lawyer that knows how to spot and argue those similarities.
Also, Title VII of the 1964 Civil rights Act prohibits employment discrimination based on race, color, religion, sex, and national origin.

Does the law protect me from being fired for my age or gender?

Yes. If you were fired or dismissed illegally, you can get paid money. Your company can be forced to answer for their illegal actions. They may also be ordered to give you your job back. In 2017, over twenty five thousand people filed sex discrimination charges with the federal government.

For example, if you are over 40 and got fired while younger workers did not, the law protects you. For another example, if male employees got a raise and as a female employee you didn’t, the law also protects you.

Was I wrongfully dismissed or wrongfully terminated based on my age or gender?

If you were fired illegally, that means you were wrongfully terminated. 18,376 people filed age discrimination charges with the federal government in 2017. Almost 100,000 similar charges are filed yearly all over the country.

The Court system is designed to handle wrongful dismissal and wrongful termination actions. Let us put the system to work for you.

Can I be suspended or fired for no reason other than my age or gender?

You can only be fired or suspended for lawful reasons. Arkansas is an at-will employment state, but a company still must follow all local, state, and federal laws. Any employment action that discriminates against you in violation of a law, means you are protected.

Do I need a good age or gender discrimination attorney in my area?

Yes. Chris Burks is an experienced age and gender discrimination attorney. He is a member of the National Employment Lawyers Association. Chris has represented thousands of employees in employment law cases across the country. His articles on employment law have been published. He knows the age and gender discrimination laws well and will not stop fighting for your rights.

Under the federal labor law, when an employer-employee relationship exists, the employee must be paid at least the Federal minimum wage of $7.25 per hour and in most cases overtime at time and one-half his/her regular rate of pay for all hours worked in excess of 40 per week.

The ride-share company Uber has agreed to pay $20 million to settle a lawsuit accusing the ride-share service of classifying drivers as contractors to avoid paying them minimum wage and providing benefits: https://phys.org/news/2019-03-million-settlement-uber-driver-lawsuit.html

wh Law has filed a lawsuit against Uber for overtime.  Click here to read more about it: https://arktimes.com/arkansas-blog/2019/05/08/uber-facing-pushback-from-drivers

Are you really an independent contractor?

The United States Department of Labor has determined that:

Receiving a 1099 does not make you an independent contractor under the federal labor law.

Signing an independent contractor agreement does not make you an independent contractor under the federal labor law.

You are not an independent contractor under the federal labor law merely because you work offsite or from home with some flexibility over work hours.

Whether you are paid by cash or by check, on the books or off, you may still be an employee under the federal labor law.

Even if you are an independent contractor under another law (for example, tax law or state law), you may still be an employee under the federal labor law.

Having an employee identification number (EIN) or paperwork stating that you are performing services as a Limited Liability Company (LLC) or other business entity does not make you an independent contractor under the federal labor law.

“Common industry practice” is not an excuse to misclassify you under the federal labor law.

Are other independent contractors owed overtime?

(1) One of the most common problems is in the construction industry where contractors hire so-called independent contractors, who in reality should be considered employees because they do not meet the tests for independence.

(2) Franchise arrangements can pose problems in this area as well. Depending on the level of control the franchisor has over the franchisee, employees of the franchisor may be considered to be employed by the franchisor.

(3) A situation involving a person volunteering his or her services for another may also result in an employment relationship. For example, a person who is an employee cannot "volunteer" his/her services to the employer to perform the same type service performed as an employee. Of course, individuals may volunteer or donate their services to religious, public service, and non-profit organizations, without contemplation of pay, and not be considered employees of such organization.

(4) Trainees or students may also be employees, depending on the circumstances of their activities for the employer.

(5) People who perform work at their own home are often improperly considered as independent contractors.

What is a gig worker?

True independent or gig work consists of income-earning activities outside of traditional, long-term employer-employee relationships.

In many cases, temp-agency and subcontracted work is W-2 work, but the W-2 is issued by the contracting company rather than the company where the worker reports to work.

Merely because you are not given a W-2 and instead a 1099, does not make you an independent contractor or gig worker.

Do I need a good employment law attorney in my area?

Yes.  Chris Burks is an experienced employment law attorney.  He is a member of the National Employment Lawyers Association.  Chris has represented thousands of employees in employment law cases across the country. His articles on employment law have been published.  He knows the employee misclassification laws well and will not stop fighting for your rights.

 

All caregivers are owed the federal minimum wage of $7.25 an hour and an overtime payment for all hours worked over 40 in any work week, unless some very specific exemptions are met.

However, many agencies or individuals are not following the law.

This law firm has a lawsuit against PALCO, Inc. for back wage payments. If your payments from PALCO have ever been delayed or denied, or you are working more than 40 hours in any work week, please give us a call at 501-891-6000 or text us at 501-214-5934.

Click here to read the Arkansas Democrat Gazette Article about the lawsuit filed against Palco. 

What hours can I be paid for?

You can be paid for the time you are working an as an employee. The law requires payment for all time when the worker is providing services or is required to be available to provide services. For example, if as a home care worker you are cooking or helping your client get dressed, that time must be paid for, and is considered “hours worked.” Or if the client is napping and the you must be available whenever they wake up, your time time is hours worked, even if you spend that time watching TV.

For more information on how to determine what time is “hours worked” that must be paid under the FLSA, see Wage and Hour Division’s Fact Sheet #79D, Hours Worked Applicable to Domestic Service Employment Under the FLSA. www.dol.gov/whd/homecare/factsheets.htm

Are there exemptions?

“Live-in” home care workers

They are entitled to receive at least the federal minimum wage for all their hours worked, but are not required to receive overtime pay. This is called the “live-in domestic service employee exemption.” Only consumers and their families and households may claim the live-in domestic service employee exemption. Agencies or other outside employers of live-in workers must always pay overtime.

Family member

If a family (or household) member of the consumer is paid to provide home care services, whoever is managing the services is the family member’s employer. For example, the consumer and a home care agency could jointly employ the consumer’s son or father. In those circumstances, family members must receive the minimum wage and overtime pay for all time that is within the employment relationship.

Companionship service exemption

In some limited circumstances, consumers and their families or households are not required to pay a home care worker federal minimum wage and overtime pay. If a home care worker provides mostly fellowship and protection, which means she spends most of her work time watching over the consumer and keeping the consumer company, then an exemption from the wage requirements might apply. This is called the “companionship services exemption.” Any employer (like an agency) must always pay federal minimum wage and overtime.

If a home care worker is employed by an outside employer, such as a home care agency, then that employer is responsible for paying the worker at least the federal minimum wage and overtime pay.

The companionship services exemption is narrow. It only applies if: a home care worker spends no more than 20% of his or her total working time in a workweek assisting with personal care, such as bathing, dressing, toileting, grooming, cooking, cleaning, etc.; The worker does not perform any medically related tasks, which are tasks that are usually done by a nurse or certified nursing assistant, such as tube feeding or catheter care; or The worker does not perform any general household work that is mostly for members of the household other than the consumer, such as doing laundry or cooking meals for the entire household.

Self-Direction

If someone truly self-direct your services, they are likely the home care worker’s employer and they must comply with the FLSA. (There may be another employer as well, such as a state agency or non-profit organization that participates in arranging the services. This is another example of “joint employment.”)

Should I hire an attorney?

Yes. Chris Burks is an experienced employment attorney. He is a member of the National Employment Lawyers Association. Chris has represented thousands of employees in employment law cases across the country. His articles on employment law have been published. He knows the caretaker laws well and will not stop fighting for your rights.

As a teacher, can I get my job back if they suspend or fire me?

Yes.  You are protected by a strong law.  The law is called the Arkansas Teacher Fair Dismissal Act (TFDA).  This law is designed to help teachers. The TFDA says that a teacher has to receive written notice of any nonrenewal, suspension, or termination. A teacher may then request a hearing before the school board to get their job back. They can be represented by an attorney at this hearing.

What happens at the school board hearing?

The only issues that the school board can look at in the hearing over suspension or termination are the issues listed by the superintendent in the original letter to the teacher.

If the school board votes to suspend or terminate the teacher, the teacher can appeal and take the school board and district to Court.

Can I lose my teaching license?

Your license can only be revoked state Professional Licensure Standards Board (PLSB).  The PLSB must follow its own rules.  You can be represented by an attorney to ensure you are treated fairly.  Many times an attorney can help the teacher in the investigation stage and then the PLSB takes no action regarding the teacher’s license.

What about being paid for the work I do?

The school board has to act before you are suspended without pay.  If you are suspended or terminated without written notice, please call a lawyer immediately.

What if I am not a teacher, am I still protected?

Yes. The TFDA applies to all employees of a school district who must have a teaching license, but not superintendents and assistant superintendents. The TFDA law protects principals, assistant principals, counselors, and specialist employees as well.

Should I hire an education-law attorney?

Yes.  Chris Burks has represented many teachers in Teacher Fair Dismissal Act cases.  He is trusted by the Arkansas State Teachers Association to represent their teachers.  He also published articles on education law and trained other attorneys on education and state government law.

Chris knows the law well, and knows how to make it work for you.

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