BREAKING NEWS!! New Ruling on Tips in Colorado!!

July 7, 2017

BREAKING NEWS!! New Ruling on Tips in Colorado!!

We recently became aware of a Court case decision that directly impacts the restaurant industry. It changes the rules on tips depending on if you take the tip-credit or not. Due to the complexity of this issue, it is important for you to read the ENTIRE story before acting. You may or may not wish to make any changes based on the information provided. However, if you do choose to make any changes, we recommend that you seek council prior to doing so.

On June 30, the Tenth Circuit Court of Appeals decided a case concerning tipped employees that sets a new legal precedent for employers in the State of Colorado. In Marlow v. The New Food Guy, Inc, the Court decided in favor of the employer, closing the door on claims that tipped employees have a “property right” to tips paid as a result of customer service, as long as the employer pays the employees FULL minimum wage or more. This decision rejects the Federal Department of Labor rule stating tips are the property of the employee and outside of a legal tip pool, the employer can’t direct where that money goes.

The CRA recently told me I couldn’t share tips with the back of house or managers, why has this changed?

Last year, the Ninth Circuit Court of Appeals ruled in a very similar case (Oregon Restaurant & Lodging Association v. Perez) that tips were the property of the employee and outside of a legal tip pool, the employer couldn’t direct where those tips went. Additionally, the Court determined that tips could only be shared with regularly tipped positions and not the back-of-the-house staff, regardless of the hourly rate paid to tipped employees. Because this was the most recent ruling on tips and tip pools, the CRA and labor attorneys suggested following the Ninth Circuit’s decision.

What has changed is the fact that restaurants in Colorado (and several other states) are subject to the Tenth Circuit Court of Appeals and that Court has just handed down a new ruling disagreeing with the ORLA case. This new ruling changes how restaurants in Colorado may want to handle tips and tip pools.

What does this mean for restaurants in Colorado?

As long as tipped employees are paid full minimum wage (not tipped minimum wage) or more by the employer, the employer can decide how tips are distributed. This means that in Colorado tipped employees currently must make $9.30 an hour and $13.95 for overtime, or more (note- this rate will increase every January 1). If your tipped employees are paid at least this much, then you as the employer can decide how tips will be distributed and can share them with the back of house or managers, and the business can even keep some or all of the tips. Keep in mind, however, that we still have the requirement in Colorado statute, C.R.S. § 8-4-103 (6), allowing an employer to assert claim to, right of ownership in, or control over tips only if the employer posts a printed card at least 12 inches by 15 inches in size with letters one-half inch high in a conspicuous location at the place of business. The card must contain a notice to the general public that all tips or gratuities given by the patron are not the property of the employee, but instead belong to the employer. If the employer does not post a printed card detailing tip ownership as described above, the employer may not exert any control over tips designated for an employee under Colorado law. For those of you who do business over the phone or email, such as the catering business in the Marlow case, you may want to include this same notice in your catering agreements as well.

Is this permanent?

We don’t know. A group of restaurants and trade associations (including the NRA) have petitioned the Supreme Court to take up the ORLA case. This case now directly contradicts it. If the Supreme Court decides to take up this issue and rules in a certain way, restaurants will have to go back to only sharing tips with regularly tipped employees. Currently, it is not clear if the Supreme Court is even going to take up the case and if they do, it could be years before there is a ruling.

What do I need to do now?

For all of these reasons, you may want to take a more conservative, wait-and-see approach and keep your business model as is. However, some employers may want to adopt the above-outlined steps. This is the time for you to reach out to your business advisers to determine the best solution for you and your employees.

If you have any questions about tip pools, wage and hour issues, or questions about this new precedent, please contact Nick Hoover by email or call 303-830-2972.

Pinnacol Pointers: Keeping Your Workers Safe Behind the Wheel

July 1, 2017

According to the National Census of Fatal Occupational Injuries from the U.S. Dept. of Labor, Bureau of Labor Statistics, employers experienced 4,836 fatal workplace injuries in 2015, and roadway incident fatalities claimed more than one-quarter of the total. You can protect your organization’s most valuable asset — your employees — by promoting safe driving practices.

In worksite procedures and workplace signage, encourage these 10 safe driving practices to reduce the risks faced by your employees when they get behind the wheel:

  1. Inspect the vehicle. Check the lights, gauges, brakes, horn, tires, windshield wipers, fluids, belts and mirrors.
  2. Secure cargo such as tools and other equipment.
  3. Buckle up. A seatbelt reduces risk of death by 45 percent in cars and by 60 percent in light trucks.
  4. Drive defensively.
  5. Avoid distractions. Put down the cell phone and do not text.
  6. Don’t wear headphones or earbuds while driving.
  7. Avoid impairment.
  8. Avoid aggressive driving.
  9. Maintain a safe distance between moving vehicles and slow down during inclement weather.
  10. Take security measures. Carry vehicle information at all times, secure the vehicle and avoid parking lots with poor lighting or sightlines.

 

Pinnacol Resources

Visit Pinnacol’s Knowledge Center page on driving safety. The many resources on this webpage for policyholders include a sample driving and traffic violation policy, defensive driving quizzes, a vehicle safety checklist, seatbelt safety posters in English and Spanish, a short defensive driving video, and additional tools and tips to enhance the motor vehicle safety of your employees. Pinnacol’s website also lists online, interactive safe driving training available from J.J. Keller. Or, contact Pinnacol’s Safety On Call online or at (303) 361-4700 or (888) 501-4752. Our Safety Services team stands ready to answer questions and help keep your workers safe on the road.

What to Expect When ICE Knocks on Your Door

June 28, 2017

The CRA has been receiving an increased number of calls from employers that have received a visit from ICE agents or who are concerned about what to do when/if they do receive a visit.

We thank Hans Meyer and Julie Gonzales of The Meyer Law Office for conducting a free seminar designed to give you an update on what to expect, what your rights as an employer are and how to comply with immigration laws during the hiring process.

This presentation covered:

•Background: Trump administration immigration enforcement policies
•I-9 Audits – The process & the consequences
•Social Security “No-Match Letters”
•What you have to do if confronted by an “ICE RAID”
•What you can do for before an ICE raid occurs
•What you can do for employees who have been “picked up” Immigration court 101
•Recent Scenarios
•Question and Answers

Some Handout Materials from that seminar are found below.
Know your Rights for Employers Presentation
Redacted Notice of Inspection Letter from ICE
Redacted DHS Subpoena
Redacted DHS Administrative Warrant
Employer – Know Your Rights

And in case you need an updated I-9 Form, you can get it HERE

If you have any questions about this content, contact the CRA Office 303-830-2972. Or contact The Meyer Law Office, PC for more information specifically on Immigration Law.

Music is Instrumental in Providing “Sociability” for Businesses

June 22, 2017

By BMI | originally published in Food & Beverage Magazine June 2017 —

A vibrant nightlife is important. In fact, it’s like money in the bank for cities everywhere. Between tourists, conference-goers, and regular locals, people like places that promote “sociability” and that’s where they like to spend their hard earned cash. And when you think of the term “sociability,” what comes to mind? That’s right. Places to eat, drink and listen to music.

The Responsible Hospitality Institute (RHI), a private, non-profit organization founded in 1983, is one of the leading sources for events, resources and consultation services on nightlife. At their recent summit in Austin, Texas, one of the primary focuses was on the value of music. During the presentations, which included “Make Live Music Thrive in Your City,” the facts couldn’t be stated enough:

“Live music draws tourists, attracts new residents and provides an authentic cultural experience. A city can achieve global recognition for its local music. But it also has concrete benefits for the local economy. The music industry generates tax revenue and creates jobs. Hotels, restaurants, and taxis also indirectly benefit from music fans.”

The beauty of this statement is that the power of using music not only applies to cities, it also applies to small businesses that can become destinations as well. People have to eat and drink, that’s a fact. But they do have a choice of where – and music can be a deciding factor. No matter where a business is situated, the way it sounds is important.

BMI represents songwriters because we, too, love music and what it adds to our culture. Over the past 77 years, the Company has seen how our affiliates’ work has been the soundtrack to the exuberant highs and lows that bring people together as a community. These 750,000 music creators come from small towns, big cities and everywhere in between, all with the same goal in mind – to create music that reaches people and makes their day a little brighter, and a lot more “sociable.” What other commodity can provide all that?

So, ask yourself what it would be like to have the radio go silent, the Internet stripped of its music and the themes of any TV show or movie removed. Pretty bleak. Fortunately, we, like the customers of bars and restaurants, have a choice. We can continue to support music creators, and in doing so, support ourselves and the businesses we run.

For more information on how to obtain a BMI music license, please visit bmi.com or call a BMI representative at (800) 325-1395.

Study Shows Minimum Wage Hikes Could Push Low-Pay Workers Away

June 21, 2017

File this under O RLY – A new study from CU Boulder finds that raising the minimum wage could push low-pay workers away. Quoting the study author, “By making low-skilled workers more expensive, there is the potential for employers to use fewer workers, switch to slightly higher-skilled workers or exchange capital technology—such as self-serve kiosks—for low skilled workers.” That is consistent with what CRA members told us last year during the minimum wage fight. Read the full story here.

 

+ And read how San Diego’s quick and steep rise in minimum wage is having an effect on restaurants in that city.

+ Another study from the University of Washington looks at the implications of higher minimum wages on hours for low wage workers. To read more about this study, click here.

2017 NRA Show Presentations Available

June 21, 2017

What’s that you say? You can’t wait for all the amazing educational opportunities at the upcoming Colorado Restaurant Show in October? Get a quick fix and review the presentations from the 2017 NRA Show. They included topics from Cybersecurity to Cold Brew Coffee and everything in between. Then mark your calendar for October 9-10 for the Colorado Restaurant Show at the Colorado Convention Center where you can join your fellow restaurateurs in learning the latest trends in technology, business operations, workforce development and more. And stay tuned for the announcement of our killer keynote speaker this year, we think you’ll be impressed!