By: Attorney Jim Reidy

In the last session of the New Hampshire Legislature, a bill regarding tip pooling passed and became law.  Employers with tipped employees hoped that this amendment to the State’s minimum wage law change would make a meaningful change to how tipped employees can share their tips with other employees.  Sadly, some confusion remains.

Under the State’s minimum wage law (RSA 279:21), tipped employees, meaning those who work in a restaurant, hotel, motel, inn, cabin or ballroom and customarily and regularly receive at least $30 per month in tips directly from the customers may be paid base hourly rate at 45% of the current minimum wage as long as the employee’s tips at the end of each pay period at least equal minimum wage for the hours worked in that pay period.

It is commonplace for tipped employees to participate in tip pools.  Those are arrangements where tipped employees agree, without coercion from the employer, to pool their tips and divide the pool among the pool’s participants.  The employer has virtually no role in the organization of who participates in the tip pool as this is supposed to be a pool among tipped employees.  However, there is some level of employer involvement in the administration of these pools because employers need to ensure compliance with the minimum wage statute (making sure tipped employees report and get credit for their tips and the employer has paid at least minimum wage for the hours worked).  State law permits employers to help hold and administer the distribution of the pool amounts.  Employers can also suggest reasonable and customary practices, as well as mediate disputes between employees as to the distribution of tips.

That said, employers must still be careful to avoid pressuring or suggesting that employees must participate in these pools, especially the donor (tipped) employees.  The issue the New Hampshire Department of Labor has had with tip pools is whether participation in the pool is voluntary and free from coercion from the employer.  That is because participation in a tip pool depends on each employee and can vary from day to day.  Tipped employees must be able to decide whether they want to participate in the pool and to what extent.  That can vary from day to day and tipped employees must be able to opt out or change the amount of their contributions.

By: Christopher T. Vrountas, Esq. and Allison C. Ayer, Esq., Vrountas, Ayer & Chandler, P.C.

​President Trump recently nominated Judge Brett Kavanaugh to replace retiring Justice Anthony Kennedy on the Supreme Court.  Confirmation hearings are expected to take place sometime in the Fall.  Many predict the hearings will be contentious.  Most expect the Democrats to fight Judge Kavanaugh’s confirmation because he stands to replace Justice Kennedy’s critical swing vote on the Supreme Court.  However, given the Republican majority in the Senate, it is likely that Judge Kavanaugh will be confirmed.  While his future rulings cannot be predicted with certainty, it is nonetheless worthwhile to try to evaluate Judge Kavanaugh’s judicial temperament on some key matters to try to analyze how he might decide certain cases interests if he is confirmed.  To that end, below is a discussion a certain of Judge’s Kavanaugh’s decisions on employment-related matters.   
 
Biography
 
Judge Kavanaugh is currently a judge in the United State District Court of Appeals for the District of Columbia.  He was appointed to the federal bench in 2006 by President George W. Bush after serving in the President’s administration in various capacities, including Senior Associate Counsel and Staff Secretary.  Prior to his work with President Bush, Judge Kavanaugh was a partner at a large law firm and he also served as Associate Counsel in the Office of General Counsel of Kenneth Starr during the investigation of President Clinton.  He was born in 1965 in Washington, D.C. and he graduated from Yale Law School in 1990.  He is married and has 2 daughters.  After law school, he clerked for Justice Kennedy, who he is now poised to replace.   
 
Analysis of a Selection of Kavanaugh’s Employment Cases
 
During his time on the federal bench, Judge Kavanaugh has heard cases concerning a variety of legal matters that may be of interest to employers.  Below is a selection of cases that may help to indicate Judge Kavanaugh’s leanings and judicial philosophy on some of these issues:
 
Magloire K. Placide Ayissi-Ethoh v. Fannie Mae, et al.  –  Discrimination
 
This is a discrimination case where Judge Kavanaugh sided with the employee.  Placide Ayissi-Ethoh worked as in the internal audit department at Fannie Mae.  Placide Ayissi-Ethoh is African American, and he alleged that the company discriminated against him when it failed to give him a raise with his promotion as it had done with other white employees promoted at the same time.  Placide Ayissi-Ethoh also alleged that when he complained to one supervisor about his lack of raise, she said “For a young black man smart like you, we are happy to have your expertise; I think I’m already paying you a lot of money.”  He also alleged that the Vice President of Internal Audit yelled “Get out of my office nigger.” when Placide Ayissi-Ethoh complained that he was receiving staff level work even though he had been promoted.  These managers denied making the comments. 
 
Placide Ayissi-Ethoh filed claims of discrimination under theories of intentional discrimination and hostile work environment.  On appeal, the D.C. Circuit found against the employer, reasoning that the comments alleged by the employee was sufficient direct evidence to support the intentional discrimination claim and severe enough to support the racial hostile work environment claim brought by Placide Ayissi-Ethoh. 
 
Judge Kavanaugh agreed with the majority, and he wrote a concurring opinion asserting that federal law supports the proposition that one single comment can be sufficiently severe to justifying a finding of a hostile work environment.  According to Judge Kavanaugh’s concurrence, when one comment involves a supervisor using an epithet so blatantly derogatory and offensive as the n-word, that comment alone without any other evidence of racially animus, is enough to establish a racially hostile work environment.  Judge Kavanaugh noted “[n]o other word in the English language so powerfully and instantly calls to mind our country’s long and brutal struggle to overcome racism and discrimination against African-Americans” and furthermore “perhaps no single act can more quickly alter the condition of employment and create an abusive working environment” than the use of the n-word by a supervisor toward a subordinate.