Author Archives: Kristin Emmons

New Tip-Pooling Rules on the Horizon

Yesterday the comments period ended on a proposal from the U.S. Department of Labor (DOL) regarding tip-pooling regulations under the Fair Labor Standards Act (FLSA). On December 5, 2017, the DOL published a news release regarding a proposed rule which would give employers greater freedom to allow tip pools and to determine how tips should be distributed to staff, including non-wait staff.

The comments period was originally scheduled to end 30 days after the DOL announced the proposal on December 5, 2017, but was extended to February 5, 2018 after the proposal gained widespread attention. The proposed regulation received 374,064 comments.

The current FLSA tip-pooling regulations prohibit redistribution of tips by the employer to an employee other than the one who originally earned and received the tips. The new DOL proposal would rescind these regulations to allow employers to make different rules regarding the distribution of tips to employees who do not traditionally receive tips. If the DOL adopts the proposal, employers could only take advantage of the new rule if they pay the full minimum wage to their employees and do not take a tip credit against payment of minimum wage.

The DOL release is available at https://www.dol.gov/newsroom/releases/whd/whd20171204.

Takeaway: Employers may see changes to federal regulations regarding tip-pooling in the near future. However, employers should be aware that specific state laws may still govern their business and may provide for separate regulations regarding tip pools.

Does the MHRA Require an Employer to Engage in an Interactive Process to Determine an Appropriate Reasonable Accommodation?

The Minnesota Court of Appeals recently held that the Minnesota Human Rights Act (MHRA) does not require an employer to engage in an interactive process with an employee to determine whether an appropriate reasonable accommodation is necessary.

In McBee v. Team Industries, Inc., the plaintiff, a machine operator, received medical attention for back and neck pain, including numbness in her hand and arms. No. 03-CV-15-1470 (Minn. Ct. App. Jan. 16, 2018). Her doctor placed her on a lifting restriction and she subsequently notified her employer of the restriction. The employer terminated her due to concerns related to her medical restrictions. The plaintiff brought suit alleging disability discrimination and reprisal in violation of the MHRA.

In deciding the case, the Minnesota Court of Appeals first analyzed whether the plaintiff was a qualified individual with a disability. Because she could not perform the essential functions of her job – the ability to lift ten pounds – the court determined that she was not qualified. The court also held that the plaintiff was unable to be accommodated because “an employer is not required to reallocate or eliminate essential functions of a job to accommodate an employee with a disability.”

Notably, the court also held that, unlike the American with Disabilities Act (ADA), the MHRA “does not require an employer to engage in an interactive process to determine an appropriate reasonable accommodation.” The court noted that this holding runs contrary to Eighth Circuit case law holding the MHRA require an interactive process, similar to the ADA. However, the court explained that the Eighth Circuit cited “federal law for this ruling based on language in the ADA, not language in the MHRA.” And the plain statutory language of the MHRA, unlike ADA regulations, makes no mention of a required interactive process.

Takeaway: The MHRA, which applies to all employers who employ at least 1 employee in Minnesota, does not require the employer to engage in an interactive process to determine an appropriate reasonable accommodation for a disabled employee. The ADA however, which applies to employers with 15 or more employees, may still be applicable to certain companies and does require an interactive process.