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.

Combating sexual harassment in the workplace begins with a culture of respect and responsibility.  How do you build that kind of culture?  You get what you incentivize, and it starts with strong anti-harassment policy and training.  But it does not end there.  It is the employer’s reaction to allegations of sexual harassment that sets the tone and determines the workplace’s culture.  Will your company be permissive of sexual transgressions, particularly where the accused is a valued employee?  Or will your company take every complaint seriously, investigate it thoroughly, take appropriate actions in response, and protect the alleged victim from retaliation?

Know The Law.  Most (hopefully all) know not to serve anyone under the age of 21, but your staff also need to know it’s illegal to serve anyone who “is visibly intoxicated or who a reasonable and prudent person would know is intoxicated.” (RSA 179:5) The sale of alcohol to an underage or intoxicated person is considered a Class B misdemeanor offense, with a set fine of $1200. If prohibited service causes injury to the customer, this can escalate to a Class A misdemeanor, with a fine of $2000 and up to a year in jail. Employees drinking while working is not only bad practice, but also illegal in New Hampshire.
 
Train Your Staff.  Staff should know how to determine questionable age, ways of detecting false/altered ID's, how to recognize signs of intoxication, techniques for cutting someone off, and how to reduce the risk of civil liability. New Hampshire offers free training, online or at various locations monthly. Bookmark this link as a resource to your staff.

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.

What Obligations Do I Have As an Employer With Respect to the Immigration Status of My Employees?
Under Federal law, all employers must ensure that their employees complete I-9 forms that contain the employee’s true and accurate name as well as their social security number. To verify this information, an employer is required to request documentation of the employee’s identity along with the employee’s I-9 form. To reduce human errors and safeguard against employee misconduct, employers should also have two managerial employees separately review all 1-9 forms. Additionally, it is best practices for an employer to hire a third party on annual basis to review all I-9 forms.

Can I Keep A Copy of the Documents Used to Verify an Employee’s Information on an I-9 form?
Yes, under the Immigration and Nationality Act, an employer may retain copies of documents used by an employee in conjunction with their I-9 form, but only for the purpose of complying with the verification requirements.

How Do I Determine if an Employee is Eligible for Employment in the U.S.?
The Federal government has established “E-Verify” to aid employers in determining the employment eligibility of potential employees.  E-Verify is an internet based system operated by U.S. Citizenship and Immigration Services that is free and available in all 50 states.  E-Verify provides automated links to services that permit employers to type in employee social security numbers to determine eligibility.  

Do I Ever Have to Re-verify the Employment Eligibility of My Employees?
Yes. The I-9 form requires employers to note the expiration dates of aliens with respect to their work authorizations. On or before the expiration of an employee’s work authorization, the employer must re-verify that the employee is still authorized to work in the United States.  

Can I Discriminate on the Basis of Employment Eligibility?
Yes, an employer should not hire an employee who is not eligible to work in the United States. HOWEVER, an employer is not permitted to discriminate on the basis of citizenship status once an employee is considered eligible to work in the United States.

This article was prepared for NHLRA by Christopher T. Vrountas of Vrountas, Ayer & Chandler, P.C. NHLRA members are entitled to 30 minutes of free legal counsel per incident from the employment law experts at Vrountas, Ayer & Chandler. Questions on employee eligibility? Contact NHLRA at (603)-228-9585.

The Americans with Disabilities Act (ADA) says businesses must admit service animals anywhere their owners go, but business operators and their employees sometimes don’t know exactly what the law stipulates. Here are the answers to some frequently asked questions on service animals.

What kind of animals must I allow in my restaurant?
The law applies only to dogs and miniature horses that are specifically trained to respond to the needs of a person with a disability. For example, someone can’t bring a boa constrictor to a restaurant and say it makes him or her feel more comfortable. The law covers only service animals individually trained to do specific tasks. It doesn’t cover animals that provide emotional support, comfort, well-being or companionship.

What do I do if someone enters my establishment with a service animal? Can I keep it away from other guests?
Many operators are concerned about allowing service animals in their establishments, but you can’t prevent a service animal and its handler from entering. Some worry the animal will misbehave or bother other guests. But well-trained service animals are better behaved than most pets. They won’t beg for food at the table or make an impact at the restaurant. According to the ADA, you must allow the service animal to go anywhere the customer goes, including the restroom.

How do I know it’s really a service animal?  Can I demand some sort of proof?
Service animals aren’t required to wears vests, collars, backpacks or other identifying features. The ADA doesn’t require you to admit animals in training, which often wear special vests, but some state laws do. Check with your regional ADA center to find out about training animal requirements in your state.

You can’t ask for documentation of service animals, and your guests don’t need to show licenses or tags. While some guests might voluntarily offer to show you a license, you can’t demand proof.

What should I say to the guest with a service animal?
There are only two questions you can ask about the service animal: “Is the animal a service animal required because of a disability?” and “What tasks is the animal trained to perform?” You can’t say, “You don’t look like you have disability” or ask what the disability is. The guest might say, “My service animal pulls me, opens doors and fetches things off floor.” He or she never has to state what the disability is. Otherwise, it’s a violation of civil rights.

Source: National Restaurant Association. Click here to read the full article.