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ORLA in the News with U.S. Department of Labor Final Rule on Tip Pooling
A final rule on tip pooling in the United States was recently released on December 22, 2020 and will go into effect across the country on February 20, 2021. The final rule further establishes the legality of overseeing and managing a tip pool that includes staff who do not customarily and regularly receive tips by directly interfacing with a customer. Managers and supervisors are still prohibited from participating in tip pools. The final rule does define further, explaining as follows: “...the final rule defines a manager or supervisor for purposes of section 3(m)(2)(B) as any employee (1) whose primary duty is managing the enterprise or a customarily recognized department or subdivision of the enterprise; (2) who customarily and regularly directs the work of at least two or more other full-time employees or their equivalent; and (3) who has the authority to hire or fire other employees, or whose suggestions and recommendations as to the hiring or firing are given particular weight. The definition also includes as managers or supervisors any individuals who own at least a bona fide 20 percent equity interest in the enterprise in which they are employed and who are actively engaged in its management.” The one exception to this rule is “a manager or supervisor may keep tips that he or she receives directly from customers based on the service that he or she directly provides.” In summary, the final rule simply codifies our collective win advocating for the importance of tip pools. Pages 11 and 12 of the Rule states: “In 2016, a divided Ninth Circuit panel upheld the validity of the 2011 regulations. See Oregon Rest. & Lodging Ass’n (ORLA) v. Perez, 816 F.3d 1080, 1090 (9th Cir. 2016). Although the Ninth Circuit declined en banc review of the decision, ten judges dissented on the ground that the FLSA authorized the Department to address tip pooling and tip retention only when an employer takes a tip credit. The dissent noted that the Ninth Circuit itself had decided in Cumbie that the FLSA ‘clearly and unambiguously permits employers who forgo a tip credit to arrange their tip-pooling affairs however they see fit.’ … In its 2018 response to the petition for a writ of certiorari in the ORLA case, the government explained that the Department had reconsidered its defense of the 2011 regulations in light of the Ninth Circuit’s ten-judge dissent from denial of rehearing in ORLA and the Tenth Circuit’s decision in Marlow … the Department published in December 2017 an NPRM that proposed to rescind the challenged portions of the regulations.” The actual regulation and a summary of the final rule can be found here: https://www.dol.gov/agencies/whd/flsa/tips. Restaurant Employee Compensation Tools With tip pooling being legal with back of the house employees, employers may have questions about what their options are. ORLA launched a Restaurant Compensation Solutions Workgroup to review tools being implemented in restaurant operations across the state, including mandatory service charges, tip pooling policies based on sales that assist in compensating kitchen staff, and dual tip lines notating tip options for both servers and kitchen staff. Tip pooling policies should be carefully reviewed with counsel before implementation to ensure compliance with all applicable requirements. For more on this subject, click the links below.
Update: December 2019 A federal spending bill passed in 2018 abolished a 2011 regulation prohibiting tip pooling; managers can now require that servers share tips with kitchen staff in states where employers do not take a tip credit. This change allows tip sharing among both customarily and non-customarily tipped employees in Oregon, including dishwashers and cooks. Managers, supervisors, and owners cannot participate in the tip sharing. A proposed rule to implement the change has been released as of October 7, 2019; comments were due by December 9, 2019. One thing this proposed rule seeks to address is that the words “supervisor” and “manager” were not defined in the 2018 spending bill. This is especially important to our industry since many have hybrid approaches to their service positions. Supervisors and managers in some of Oregon’s smallest restaurant operations commonly serve guests and have participated in front-of-the-house tip pools as a part of a team approach to foodservice. Employers are to use the “duties test” to determine who qualifies as a supervisor or manager, and establish tip pool eligibility. Essentially, if an employee’s primary or regular duty is not management or supervising, they are still allowed to participate in a tip pool. For details on the standard of the “duties test,” read the U.S. Department of Labor (DOL) Field Assistance Bulletin. Prior to this change, the decision to participate in a tip pool was left to employees. For more context on the issue, check out Tipping the Scales (Oregon Business, April 2018). The Bureau of Labor and Industries (BOLI) FAQ may answer any additional questions regarding tips at Oregon.gov/BOLI. News/Resources:
For additional questions, contact Greg Astley, Director of Government Affairs, at 503.682.4422. This is for general informational purposes only. The information is not, and should not be relied upon or regarded as, legal advice. Please consult with your legal advisors.
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Oregon State Legislature Passes Bill Allowing To-Go Cocktails, Commission Caps on Food Delivery12/21/2020 FOR IMMEDIATE RELEASE: December 21, 2020
Contact: Jason Brandt, President & CEO, ORLA 503.302-5060 | JBrandt@OregonRLA.org Oregon State Legislature Passes Bill Allowing To-Go Cocktails, Commission Caps on Food Delivery Legislation will provide relief to hard-hit restaurant industry Today, the Oregon State Legislature passed an important bill to help Oregon’s restaurant industry survive during the COVID-19 pandemic, the economic shutdowns and the limited dining capacity associated with both. SB 1801 passed the Oregon Senate by a vote of 21 Ayes, 3 Nays and 6 Excused absences. Senator Elizabeth Steiner-Hayward carried the bill on the Senate side. In the Oregon House, the bill was carried by Representative Rob Nosse, passing with 50 Ayes, 4 Nays and 6 Excused Absences. “We recognize To-Go Cocktails will not completely solve the crushing economic impact the pandemic, the shutdowns and the limited ability to seat customers and conduct business are having on bars and restaurants but it will help,” said Greg Astley, ORLA Director of Government Affairs. “It will help some more than others,” Astley continued. “It may mean the difference for a restaurant being able to stay open through the hard winter months when it’s likely 29 of Oregon’s 36 counties will remain in the ‘Extreme Risk’ category, only able to offer outdoor dining in a tent with three open sides or pickup and delivery as dining options.” The second part of the bill establishes a temporary cap on commissions paid by restaurants to third-party delivery platforms for facilitating food orders. “With the shutdowns essentially forcing restaurants to offer take-out and delivery or close their doors and layoff employees, operators welcome this temporary economic relief,” said Astley. “During this pandemic, there have been increases in Oregon’s minimum wage, price increases on supplies including proteins, PPE and cleaning products and despite not being able to seat people inside their restaurants at times, operators still have to pay their full rent, licensing fees and permits to operate even at a diminished capacity.” “These two acts will certainly help Oregon’s devastated restaurant industry, but we know more needs to be done,” stated Astley. “Oregon’s restaurants need additional financial relief from Congress and the State to make sure we survive.” ### The Oregon Restaurant & Lodging Association is the leading business association for the foodservice and lodging industry in Oregon, which is comprised of approximately 10,000 foodservice locations and 2,000 lodging establishments with a workforce prior to COVID of 183,191.  Sustaining Operations and Avoiding Closures will Still Prove Challenging
FOR IMMEDIATE RELEASE: December 21, 2020 Contact: Jason Brandt, President and CEO, ORLA 503.302.5060 | JBrandt@OregonRLA.org Wilsonville, OR– Today, Congress unveiled a $900 billion relief bill to provide short-term economic relief to the country in the face of the coronavirus pandemic. The plan includes several items that will benefit restaurants and lodging establishments, most importantly a second round of access to the Paycheck Protection Program (PPP), with unique provisions aimed to assist the restaurant and lodging industries, which continue to endure unparalleled job and revenue losses. In addition, the Oregon State Legislature is holding a third special session of 2020 and is poised to pass To-Go Cocktails legislation as well as statewide caps on third party technology and delivery expenses charged to restaurants. “Hospitality operators in Oregon have been pleading for both long-term and short-term economic support,” said Jason Brandt, President & CEO for the Oregon Restaurant & Lodging Association. “Today’s developments will assist restaurant and lodging establishments with their quest to survive. However, it does not change the unsustainable trajectory facing thousands of Oregon small businesses who have ongoing bills for their dining rooms with little to no revenue to cover those expenses.” Today’s developments in the Oregon Legislature are expected to assist operators in realizing additional revenue for cocktail programs accompanying food purchases for takeout and delivery while also assisting operators with cost control on expenses. “The progress made today at both the state and federal levels feels like getting a new pair of running shoes,” said Brandt. “There is still a race for survival in conjunction with vaccine distribution and the majority of operators will remain unprofitable. Our reality remains the same – we are attempting to stretch out our cash until we actually get to the light at the end of the tunnel we’ve all been talking about.” The federal plan announced today targets restaurant and lodging relief with provisions including:
Other provisions in the bill that will benefit hospitality operations include the deductibility of business expenses paid with PPP loans, enhancement of the Employee Retention Tax Credit (ERTC), extension of the augmented Work Opportunity Tax Credit (WOTC), and increased tax deduction for business meals. ### The Oregon Restaurant & Lodging Association is the leading business association for the foodservice and lodging industry in Oregon, which is comprised of over 10,220 foodservice locations and 2,000 lodging establishments with a workforce of 183,191, and a total economic impact of $13.8 billion in annual sales for Oregon. Oregon’s Legislature will meet on Monday, December 21 for a one-day Special Session to discuss four specific issues including To-Go Cocktails and Commission Caps on Third Party Deliveries. Read the draft of Legislative Concept (LC 10).
We realize this legislation won’t fix everything so we are still working with the Governor’s office, Oregon Health Authority and Legislators to find ways to re-open dining rooms sooner and safely. You can help by contacting the Governor and your Legislators (find your legislator here) to let them know how little time you have left before you have to close your doors because of the restrictions on indoor dining. Public hearings have now been posted for Thursday evening (6:00-9:00pm) and Saturday morning (10:00am-1:00pm). You may provide written or oral testimony at these meetings. For more information on these public hearings and to sign up to testify, please visit the following websites:
Written Testimony:
Oral Testimony (Live Remotely):
Important note about testimony: Neither registration nor use of the public access kiosk is a guarantee that you will be able to testify during the meeting. The chair may determine that public testimony must be limited. For this reason, written testimony is encouraged even if you plan to speak. The Presiding Officers are extending the period for public comment. The public record is open when a meeting is posted until 24-hours after the committee is scheduled to meet. For example, this means written testimony can be submitted now until 6:00pm on Friday for the public hearing on Thursday. Our Industry Needs Your Voice at the Table! We need your voice at the Capitol to help pass this legislation. We need you to share your story of how the shutdowns, freezes and restrictions have impacted you and your employees and why this legislation would help you survive! If you are not already signed up for ORLA’s Text Alerts, please take a minute to text “ORLA” to 52886 today and sign up for important notices regarding key legislation and how you can help. Thank you in advance for taking action. Financial Support in Motion for Legal Battles on Multiple Fronts FOR IMMEDIATE RELEASE: December 10, 2020 Contact: Jason Brandt, President & CEO, ORLA 503.302.5060 | JBrandt@OregonRLA.org Wilsonville, OR – The Oregon Restaurant & Lodging Association has officially launched a Legal Defense Fund as authorized by the state association’s Board of Directors. The fund will be used to address multiple inequities facing Oregon’s restaurant and lodging establishments in their quest to survive the ongoing pandemic. “Operators from all corners of the state have reached their breaking point and have asked for continued legal support to fight for their rights,” said Jason Brandt, President & CEO for the Oregon Restaurant & Lodging Association. “There is a growing list of inequities facing Oregon’s hospitality industry that require additional judicial oversight.” Tens of thousands of hospitality businesses have permanently closed across the country due to government mandates including hundreds in Oregon. “Local and state government in Oregon over the past year have taken away business operations for public purposes,” said Brandt. “Small businesses across the state are owed compensation whether we’re talking about taking a dining room for virus mitigation or taking an entire lodging location for a certain duration of time.” Operators across the state are also growing more frustrated by a lack of adjustment to taxes and fees that fail to consider the operational reality of the year 2020. Examples include exponential increases in unemployment insurance tax rates for 2021 and beyond, county health inspection fees based on the number of dining room seats in your establishment, and licenses for on-premises alcohol consumption. “There are some local governments in Oregon deserving of recognition for the ways they have provided historic flexibility to operators,” said Brandt. “We need to build on that awareness within our government institutions to illustrate the severity of the situation. No operator should have to pay exponential increases in their unemployment insurance rates or normal costs for county health inspections or on-premises alcohol consumption licenses as if 2020 was another normal year of operation.” ORLA’s Legal Defense Fund will provide financial support to operators interested in moving forward as plaintiffs in court. Lawsuits filed will be unique in nature and dependent on the circumstances facing operators with a focus on government restrictions causing a hospitality business location to close permanently. “There will be those that argue these businesses would have had to close anyway due to the impacts of COVID-19 on consumer demand,” said Brandt. “We can prove that is simply not the case. Financial proof of the direct impact of government restrictions outside of consumer demand is widely available to us and will be shared with the courts as we fight for the survival of Oregon small businesses and the tens of thousands of Oregonian jobs within them.” For more information on the efforts of the Oregon Restaurant & Lodging Association please visit OregonRLA.org. ### The Oregon Restaurant & Lodging Association is the leading business association for the foodservice and lodging industry in Oregon, which before COVID-19 provided over 180,000 paychecks to working Oregonians. Currently, approximately 55,000 of those workers, or 30%, do not have work available to return to. To donate to the Legal Defense Fund, click here: [Update as of 12.8.20] Oregon OSHA Rule Updates: Grace Period Extended, Training Offered Grace Period OR-OSHA will grant a 3-week extension to restaurants, gyms and other businesses impacted by the freeze/the new county risk levels. All other businesses are granted a 1-week enforcement grace period IF they are actively working to comply. Read memo from OR-0SHA. Training Materials OR-OSHA has released an online interactive education course designed to help employers meet four of the 10 training requirements found in their COVID-19 rules. The 1-hour course begins with an explanation of the dangers of COVID-19 and why the temporary rules were adopted. The course is then divided into four modules: Introduction; Signs, Symptoms and Transmission; Control Measures; and Conclusion. The course is available in both English and Spanish and should be incorporated with your other training planned under the rules. Find English Course and Spanish Course. You can also download the presentation as a PowerPoint (scroll to bottom of page). While not required, OR-OSHA also included a model ‘training verification form’ for employees. OR-OSHA also released completed Exposure Risk Assessment and Infection Control Plans over the weekend:
Important Timelines to Remember:
*Reminder you do not need to submit your Exposure Risk Assessment or Infection Control Plan to OR-OSHA for review. Your Infection Control Plan (if you have more than 10 employees or are an “Exceptional Risk Workplace”) needs to be available in writing to your employees at the workplace. Helpful tools to-date:
[Update as of 11.6.20]
The final OSHA Temporary Rule addressing COVID-19 has been released. As a reminder, as Temporary Rules these are allowed to be in effect for 180-days. A discussion about making them permanent (possibly expanded/revised) is expected to begin in the coming weeks.
Effective Date: November 16, 2020 to May 4, 2021
Delayed Effective Dates:
Several resources are now available online under “Documents,” with more on the way in the weeks to come. OSHA also offers consultation services and technical specialists to help employers comply with the requirements. View the entire Temporary Rule here: https://osha.oregon.gov/OSHARules/div1/437-001-0744.pdf View workplace chart for application here: https://osha.oregon.gov/rules/advisory/infectiousdisease/Documents/Overview-Table-for-Oregon-OSHA-COVID-19-Temporary-Rule.pdf OR-OSHA also released a fillable Exposure Risk Assessment to download – for use by employers in their compliance. We expect additional training tools to be released in the coming weeks including, model Infection Control Plans, videos for use in employee training and a sample/model Employee Notification Policy. Update as of 10.28.20 There is a lot going on right now at the Oregon Occupational Safety and Health Administration (OSHA) and we wanted to provide a direct update to summarize all the activity. There are 3 separate public processes occurring at Oregon OSHA. Please take a look below and click through on any link if the issue is one you wish to provide comment on. If you’re interested in ORLA's perspective on each item, see the “ORLA Notes” with each paragraph below. (1) COVID-19 Temporary Rulemaking Oregon OSHA has initiated a process to create an infectious disease control standard temporary rule for all workplaces in Oregon. The process has included taking Phase 2 guidelines for our industry from the Oregon Health Authority and housing them at Oregon OSHA in a temporary rule format. By law, temporary rules can last no longer than 180 days.
(2) Penalties – Increasing Minimum and Maximum Penalties At the same time – and completely unrelated to the COVID-19 pandemic or the COVID-19 temporary rulemaking, Oregon OSHA is coming to the end of an eight-month period of public comment on changes to the existing penalty rules, including an increase in the maximum penalties that align Oregon penalties with federal OSHA as directed by both Congress and the Oregon Legislative Assembly.
(3) Employer Knowledge/Employer Responsibility The Employer Knowledge rulemaking has been on a similar time frame as the Penalties Rulemaking, but they are actually two distinct rulemaking proposals. In this rulemaking, Oregon OSHA proposes to add two definitions and a paragraph to the Division 1 rules. The Oregon Supreme Court in CBI Services v. Oregon OSHA determined that Oregon OSHA needs to more clearly define how “reasonable diligence” and “unpreventable employee misconduct” are interpreted and applied in enforcement activities and Oregon OSHA believes that such guidance is most appropriately provided through an administrative rule. The proposed additions to the rules are to clarify in general how Oregon OSHA assesses an employer’s reasonable diligence, what constitutes unpreventable employee misconduct, how Oregon OSHA assesses an employer’s knowledge of a violation, and when an employer is and is not responsible for a violation that has occurred on its worksite. After spending several years developing the proposal, Oregon OSHA is coming to the end of an eight-month period of public comment on these proposed changes.
Please take action and make a difference if you can. New Survey Findings Reveal Dire Situation for Restaurant Operators without Federal Financial Assistance
FOR IMMEDIATE RELEASE: December 7, 2020 Contact: Greg Astley, Director of Government Affairs, ORLA 503.851.1330 | Astley@OregonRLA.org Today, the National Restaurant Association is releasing a letter to Congress with the results of the latest survey on the economic health of the industry, and the findings are bleak:
In Oregon, the findings are as follows:
For months, Congress has been trapped in a political tug-of-war while restaurants continue to go dark. A group of moderate Democrats and Republicans last week unveiled a compromise plan bringing both parties back to the negotiating table. They are calling for a $909 billion relief bill, including a second round of Paycheck Protection Program grants, which with improvements could provide immediate assistance to restaurants. “We need Congress to pass the Blueprint for Restaurant Revival,” said Greg Astley, Director of Government Affairs for the Oregon Restaurant & Lodging Association (ORLA). “While we are waiting for that to happen, we also need to make sure Congress at least passes some type of financial relief plan before leaving town for the year. Our industry simply cannot wait for relief any longer.” While the recent $55 million in state funds will help the hospitality industry to some degree, it will not be enough to cover the massive losses brought about because of the pandemic and economic shutdowns. “As costs continue to rise and revenues continue to fall for operators, and with more layoffs likely in the future, Oregon’s hospitality industry needs Congress to put aside the turf wars and come together to pass a relief package,” said Astley. “Without it, your neighbor’s job is in jeopardy and your favorite neighborhood restaurant may be the next one to forever close their doors.” ### The Oregon Restaurant & Lodging Association is the leading business association for the foodservice and lodging industry in Oregon, which is comprised of approximately 10,000 foodservice locations and 2,000 lodging establishments with a workforce prior to COVID of 183,191. |
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