North America

Costa Rica: New Regulations Governing the Payment of Tips

shutterstock_74985628Small_waitress_server_restaurant_service.jpgThe Official Gazette, the official journal and publication of the government of Costa Rica, recently published the Ministry of Labor's new regulations on the tipping laws, which regulate the payment of tips to restaurant waiters, waitresses, and busboys.  Following are important regulations to bear in mind when implementing a tipping policy.

The new regulations establish that the full tip amounts should be delivered directly and made available to the waiting staff.  In a practical sense, this would mean that the tips can no longer be shared among other employees, especially in cases where two or more employees are responsible for waiting on the tables.  Accordingly, employers should avoid any tip-sharing schemes.

Further, restaurants are no longer allowed to make deductions from the waiters' or busboys' tips.  Accordingly, any taxes on service (e.g., fee on the use of glassware) cannot affect the amount of tips that the waiters or busboys receive.

The new regulations also set forth the timing for the payment of tips, which in part will be contingent upon the payment method used by customers, as well as the obligation for employers to agree with their employees on a payment system to control any tips earned by each employee.

The government authorities, as well as waiters and busboys, may request a report on the employer's compliance with the tipping law.  Accordingly, restaurants should adopt all necessary measures to be in full compliance with these new requirements, which became effective on May 6, 2014, the date of the publication in the Gazette. 

For questions concerning Costa Rica's tipping law, please contact any Littler Global Costa Rica attorney.

Legislative Updates for the Month of May 2014

Leg Roundup Image 132 by 140.jpgRules Governing Overtime, Reportable "Persuader" Information, to be Released this Year According to Federal Spring 2014 Regulatory Agendas
 Once again, federal agencies quietly released their semi-annual regulatory agendas on the eve of a long holiday weekend, and on the same day President Obama announced his nomination of Shaun Donovan to lead the Office of Management and Budget (OMB). Twice a year, agencies set forth all rulemaking items under development, along with target completion dates. While these dates are often aspirational, they do provide some insight into which rules will be released sooner rather than later, and which items have been placed on the backburner. Read the full post here. (May 27, 2014) 

OSHA and NLRB Join Forces to Keep Whistleblower Claims Alive
During a Senate subcommittee hearing on whistleblowing last month, Occupational Safety and Health Administration (OSHA) Assistant Secretary David Michaels lamented the relatively short 30-day statute of limitations for filing a whistleblower claim under section 11(c) of the OSH Act. According to Michaels, the agency dismisses hundreds of merit cases each year solely on the statute of limitations issue. His oral and written testimony suggested a number of ways to give teeth to what he claimed was the most widely-used whistleblower statute. One suggestion he did not make during the hearing - which is now in operation - is a "claim referral program" where OSHA intake investigators notify all complainants who file an untimely whistleblower charge of their right to file a charge with the National Labor Relations Board. Read the full post here. (May 21, 2014) 

U.S. House of Representatives Approves Exemption to Affordable Care Act for Expatriate Insurance Plans
For multinational corporations, the passage of the Affordable Care Act (ACA) has raised some uncertainty as to ACA's impact on expatriate workforces. Indeed, domestic insurance providers have complained that they suffer a disadvantage in the expatriate market on account of having to comply with ACA requirements, such as by providing free preventive care and a ban on lifetime coverage limits. This is because there has been no exemption from the ACA for U.S. expatriate coverage. On April 29, 2014, the U.S. House of Representatives passed the Expatriate Health Coverage Clarification Act of 2014 (H.R. 4414) to exempt health insurance plans sold to expatriate workers from the ACA requirements. Read the full post here. (May 6, 2014)

Legislative Updates for April 12-30, 2014

Leg Roundup Image 132 by 140.jpgMinimum Wage Bill Fails to Advance in Senate
As expected, Senate supporters of the Minimum Wage Fairness Act (S. 2223) failed to garner the 60 votes needed to bring the measure to a floor vote without the threat of a filibuster. The legislation - which would have raised the federal minimum wage to $10.10 per hour in increments over a three-year period and indexed future increases to inflation - was considered a symbolic component of President Obama's "Opportunity for All" agenda laid out in his State of the Union Address. The motion to invoke cloture on the Minimum Wage Fairness Act failed by a vote of 54-42. Read the full post here. (April 30, 2014) 

Littler Shareholder Greg Keating Testifies at Senate Subcommittee Hearing on Whistleblowing
During a Senate Subcommittee hearing on the adequacy of private sector whistleblower laws, Littler Shareholder and co-chair of the firm's Whistleblowing and Retaliation Practice Group Gregory Keating urged lawmakers to "consider alternatives to increased penalties and deterrents in the whistleblowing context," and recommended ways in which employers can adopt and promote cultures of compliance that encourage employees to approach management about their concerns before safety issues arise. Read the full post here. (April 29, 2014) 

Senate Confirms David Weil as New Wage and Hour Administrator
The revised Senate rule allowing certain presidential nominations to be confirmed with a simple majority vote - previously ridiculed as the "nuclear option" - enabled the Senate on Monday to confirm David Weil as the next administrator of the Department of Labor's Wage and Hour Division (WHD). The vote was 51-42 in favor of his nomination. Read the full post here. (April 28, 2014)

Canada: Circumventing the Disdain for Non-Competes

By John Kloosterman and Nima Rahimi

The Ontario Superior Court of Justice recently upheld a contract requiring a senior executive to provide six months' prior notice before resignation. The court agreed with the employer that the senior executive could not move to a competitor during the notice period, effectively prohibiting him from competing during a contractual notice period.

During and around the time of the executive's promotion, the Company went through some changes, including management changes. In discussions with the new CEO, the executive learned that the future of his role would be ultimately narrower than originally contemplated. Unhappy with this, the executive decided to move to a competitor and provided the Company with two months' notice. The Company took the position that the executive was obligated to provide the six months' notice and could not move until that period had ended.

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U.S. House of Representatives Approves Exemption to Affordable Care Act for Expatriate Insurance Plans

By Trent M. Sutton, Joseph A. Lazazzero and Steven J. Friedman

image6300411x_370x278_health_care_government.jpgFor multinational corporations, the passage of the Affordable Care Act (ACA) has raised some uncertainty as to ACA's impact on expatriate workforces.  Indeed, domestic insurance providers have complained that they suffer a disadvantage in the expatriate market on account of having to comply with ACA requirements, such as by providing free preventive care and a ban on lifetime coverage limits. This is because there has been no exemption from the ACA for U.S. expatriate coverage.

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Legislative Update for the Week of April 7, 2014

Leg Roundup Image 132 by 140.jpgLittler Shareholders Maury Baskin and Michael Lotito Testify at NLRB Public Meeting
Nearly 50 speakers have or are slated to testify during the National Labor Relations Board's 2-day public meeting on the proposed expedited or "ambush" election rule. The Board sought input on approximately 20 different issues stemming from the proposed rule, which would make significant changes to pre- and post- representation election process. Among the speakers were Littler Shareholders Michael Lotito and Maury Baskin, who testified specifically about the proposal's expedited timing of the pre-election hearing; the requirement that an employer identify all potential bargaining unit issues in its statement of position or forever waive them; the types of matters that should be resolved at the pre-election hearing; and how the rules should address voter lists.  Read the full post here. (April 11, 2014)

Congress: Heal Thyself
Many private employers, and the agencies under the federal executive branch, provide regular sexual harassment training to their employees.  Yet, one notable employer, the United States Congress, does not. Rep. Jackie Speier (D-CA) seeks to bridge that gap. On Tuesday April 8, 2014, she introduced a resolution to amend the Rules of the House of Representatives to require members and their staff to take "a specific program of training in the prevention and deterrence of sexual harassment in employment." The annual training would be two hours for new members and employees, and one hour thereafter. Read the full post here. (April 10, 2014)

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Recent Puerto Rico Court of Appeals Rulings Provide Guidance Regarding What Constitutes a Transfer of Going Business

By Elizabeth Pérez-Lleras, Ana Beatriz Rivera-Beltrán

Two recent rulings from the Puerto Rico Court of Appeals provide guidance as to what constitutes the transfer of a going business vis-à-vis the closing of a business, to determine whether the employer is liable for payment of severance to employees who are discharged within the context of those transactions.  

In Quintero v. Bestov Broadcasting, Inc., plaintiff was a sales executive who worked at Radio Puerto Rico, a radio station owned and operated by Bestov Broadcasting, Inc. ("Bestov").  Due to its economic difficulties, Bestov entered into a three-year lease with an option to buy agreement ("Agreement") with Boricua Broadcasting Corp. ("Boricua"), to lease its facilities, equipment and on-air radio time. Pursuant to the Agreement, Bestov retained the control over its policies, as well as the authority and power over its operations and programming, including the right to refuse or cancel programming or advertising that did not comply with Bestov's policies.  As the Agreement required Boricua to hire its own staff and pay their salaries, Bestov discharged all of Radio Puerto Rico's employees.  Boricua, in turn, hired several of Bestov's employees, although plaintiff was not amongst them.  Plaintiff sued Bestov alleging unjust dismissal and claiming severance.  In response, Bestov alleged that it had just cause to dismiss plaintiff because its operations had partially or completely closed due to its financial difficulties. 

The Court of Appeals looked at the interplay between Act 80 and the labor code to determine whether Bestov had established that plaintiff's termination of employment should be deemed for just cause.  Puerto Rico Act 80 of May 30, 1976 ("Act 80") provides that any person hired for an indefinite period of time, and discharged without just cause, is entitled to receive a severance payment, in addition to any wages owed.  The law also provides that just cause exists for the discharge of an employee in the case of a full, temporary or partial closing of the operations of the establishment.  However, in the case of transfer of a going business, if the buyer chooses not to continue with the services of all or any of the employees, and hence does not become their employer, the former employer shall be liable for the compensation. 

Continue reading this entry at Littler's Puerto Rico Workplace Counsel. 

US and Mexico Sign Agreement to Promote Enforcement of Employment Laws that Protect Migrant Workers

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By Carlos Ferrán Martinez Carrillo

The Secretary of the U.S. Department of Labor (DOL) and the Secretariat of Labor and Social Welfare of Mexico (STPS) signed an agreement on April 3, 2014, to strengthen the relationship between both nations and promote compliance of the labor laws of both countries, especially as it relates to the protection of migrant workers. Through this joint effort, both governments seek to ensure that migrant workers become more knowledgeable of their legal rights, as well as of the employer's obligations.

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Tags: Migration

Legislative Update for the Week of March 31, 2014

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President Obama Poised to Enact Provisions of Paycheck Fairness Act Through Executive Action
Because the House of Representatives is not expected to consider the Paycheck Fairness Act (S. 2199) this term, President Obama will reportedly implement provisions of this measure applicable to federal contractors via Executive actions on Tuesday. The move will coincide with Equal Pay Day, and is the latest in a series of recent Presidential actions designed to implement employment law reform by bypassing Congress. Read the full post here. (April 7, 2014)

House Clears Bill Revising Definition of Full-Time Employee Under Affordable Care Act
As expected, the House of Representatives approved legislation on Thursday that would change the definition of "full-time employee" under the Affordable Care Act. Under the healthcare law's employer responsibility requirements, an employer with 50 or more full-time or full-time equivalent employees will be required to provide health insurance that meets certain ACA standards to their full-time employees starting in 2015, or pay a penalty. The ACA considers a worker "full time" if he or she works 30 hours or more per week, instead of the customary 40 per week. The Save American Workers Act (H.R. 2575) would specifically define "full-time employee" as an employee, "with respect to any month . . . who is employed on average at least 40 hours of service per week.'' The measure was approved by a vote of 248-179, with 18 Democratic lawmakers joining all Republicans in support of the bill. Read the full post here. (April 3, 2014)

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Puerto Rico's ADA Counterpart, Law 44, Does Not Provide for Individual Liability

By Daniel Quiles and Jessica Earl

gavel.jpgA recent ruling by the United States District Court for the District of Puerto Rico clarifies that Law 44, Puerto Rico's counterpart to the federal American with Disabilities Act (ADA), applies only to employers and does not provide for individual liability.  Accordingly, claims brought against individual defendants under Law 44 are subject to dismissal.

In Van Praag v. DHL Exp. (USA), Inc., Civil No. 13-1128 (D.P.R. Mar. 10, 2014), the plaintiff worked as a pilot and an assistant director of operations for 14 years for his employer, a company that provided aircraft services for DHL Express (USA).  Around the same time that the employer informed plaintiff that due to the company's financial situation, his salary would be drastically reduced, plaintiff informed his superiors that he was seeking treatment for depression and was taking medication that made him tired, dizzy, and diminished his capacity to fly airplanes.  Due to his medical condition, plaintiff was unable to continue flying airplanes.  Approximately six months later, plaintiff's employment was terminated.  Plaintiff sued the company and his supervisor as an individual defendant, alleging, among other claims, disability discrimination in violation of Law No. 44, 1 L.P.R.A. § 502.  Plaintiff's supervisor moved to dismiss the complaint, arguing that neither the Puerto Rico Supreme Court nor the First Circuit has definitively ruled on the issue of individual liability under Law 44. 

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