Dave & Buster’s Settlement – Busted! But Not So Fast….

The Dave & Buster’s restaurant chain recently settled a class action lawsuit claiming it violated ERISA’s “discrimination” rules by reducing hours of various employees to cause them to lose eligibility for the company’s group health plan. After over three years of litigation in the Southern District of New York and suffering some procedural losses along the way, Dave & Buster’s agreed to settle the matter for $7.425 million.  After attorneys’ fees and costs, we estimate the employees will receive about $2,100 each.

Dave & Buster’s took the action in response to the “employer mandate” provisions of the Affordable Care Act, which require large employers to offer compliant and affordable group health coverage to full-time employees, generally defined as those working an average of at least 30 hours each week, in order to avoid potentially substantial tax penalties. The saga took a long time to play out.  The law passed in March 2010.  Dave & Buster’s started reducing employees’ hours in mid-2013. The lead plaintiff worked a reduced shift and lost eligibility for group health insurance in March 2014.  She filed suit in May 2015.  The court approved the settlement in December 2018.  The class members have to be notified, the plaintiffs’ attorneys will seek their fees and the court is expected to approve everything once and for all in mid-May 2019.  After that, class members will be paid, likely well into late-2019. Continue Reading

Performance evaluations are… coming to town?

“He’s making a list and checking it twice. He’s going to find out who’s naughty or nice… performance evaluations are…” Coming to town? Indeed. The end of year is not only holiday season, but also the time of year when a number of employers complete performance evaluations of their employees.

Just like gift giving, the evaluation process is time consuming and for many, about as much fun as a trip to the mall on Black Friday. However, evaluations—if done right—are essential to companies in various ways such as identifying and logging an employee’s performance, advising an employee on goals for the coming year, or even serving as key evidence in a company’s defense of a legal claim brought by a terminated employee. Continue Reading

Happy Holidays from Stearns Weaver Miller’s Labor & Employment Department

Thank you for being a subscriber. We hope that BeLabor the Point has brought you important information throughout the year and a few smiles along the way. Speaking of smiles, check out our department holiday card!

Wishing you a joyous holiday season and happy, healthy year ahead.

Tips For Having a (Hopefully) Happy Office Holiday Party

With the New Year right around the corner, office holiday parties are in full swing. While many enjoy celebrating the season, these festivities can sometimes turn into an HR disaster. To help ensure your celebrations are jolly, check out my tips on planning a fun, festive and inclusive holiday party here.

Wishing you all a safe, happy and healthy holiday season without any HR “Undue Hardships!”

Employing Workers with Student Debt? Bipartisan Bill Could Help.

$1.5 Trillion-that is with a T.  That is the amount of student debt currently owed by more than 40 million Americans, about 70% of whom are college graduates.  One in ten borrowers are at least 90 days delinquent on their loans.  No wonder economists and others believe it may be the next big bubble to burst.

With this in mind, members of Congress recently proposed a new bipartisan bill that would allow employers to pay down thousands of dollars a year tax-free toward employees’ student loan debt. Modeled after 401k retirement savings plans, the bill permits as much as $10,000 per year in tax-free contributions towards employees’ student loan debt. If the bill passes, it might be a first step toward alleviating a major obstacle for college graduates. Continue Reading

Employers Need To Deny This Employee Request: “Please Don’t Tell Anyone, But My Supervisor . . .”

HR folks – Have you ever had an employee tell you that he or she is being unlawfully harassed by a co-worker, but then begged you to keep the complaint confidential? Most often, employees ask their employers not to investigate their concerns because of embarrassment or fear of retribution.  Employers who honor such employee confidentiality requests, however, do so at their own peril.

When an employee claims unlawful harassment, three common employer reactions may occur. First, HR will agree with an employee’s request to keep the entire complaint confidential and not investigate.  Second, HR may decide to investigate anyway, but promise the employee “complete” confidentiality during the investigation.  Third, if the investigation determines that the employee was unlawfully harassed, HR may decide to discipline the harasser and not notify the employee of the disciplinary decision.  Are any of these decisions correct?   Short answer- No. Continue Reading

New Developments on Temporary Protected Status and Work Authorization

Over the past several months, the Department of Homeland Security (DHS) has terminated temporary protected status (TPS) designation for Sudan, Nicaragua, Haiti and El Salvador. The citizens of these countries in TPS will lose their work authorization and the right to remain in the United States.  A federal court in California recently entered a preliminary injunction prohibiting the termination of TPS for these countries.  On October 31, DHS issued a Notice in the Federal Register to comply with the preliminary injunction.

Individuals in TPS designations for Sudan, Nicaragua, Haiti, and El Salvador will retain their TPS designation while the preliminary injunction is in effect. In addition, DHS has automatically extended the employment authorization documents (EAD) of TPS beneficiaries from Sudan and Nicaragua through April 2, 2019.  The automatic extension through April 2, 2019 applies to nationals of Sudan and Nicaragua provided:

  1. Their EAD has the Category Code A-12 or C-19.
  2. Their EAD has an expiration date of 11/02/2017, 01/05/2018, 11/02/2018, or 01/05/2019.

Continue Reading

Is Your Office Halloween Party Frightening The HR Department?

Halloween office parties can be very scary-

HR folks need to be particularly wary.

Provocative costumes are a big “no no”;

Policy violators may receive the heave ho.


I guess my feeble attempt at poetry left some folks howling at the moon.

Halloween is just two days away, which means we’re all one inappropriate costume away from Halloween becoming the ultimate HR nightmare. To avoid your workplace becoming a house of horrors this Halloween, check out my spooktacular Halloween blog here.

Recruiting with Technology? Don’t Forget the “Human” in Human Resources

The public is generally familiar with the fact that Amazon.com, Google and other technology companies use computer programs and artificial intelligence to predict consumer behavior – think about the pop-up ads that seem targeted just to your interests. However, we recently learned that artificial intelligence (AI) recruiting tools may not be as robust in the hiring process.  Amazon recently abandoned its effort to use an AI recruiting system.  Amazon’s goal was to design computer programs that could instantly pick top talent from a pool of resumes. But the technology fell flat because it seemed, unintentionally, to favor male applicants.

The recruiting tool’s suspected gender bias stemmed from Amazon’s previous 10 years of hiring practices. The computer program examined successful resumes of a historically male dominated industry. As a result, it unwittingly penalized resumes with previously rare terms like “women’s” and downgraded graduates of all-women’s colleges. While the company used the recruiting engine to search for new hires, it never solely relied on its rankings. Ultimately, after losing hope for a gender and race neutral solution, executives scrapped the project. Continue Reading

Florida’s Minimum Wage: What Goes Up, Will Keep Going Up

2019 Florida Minimum Wage to Increase to $8.46 Per Hour


On January 1, 2019, Florida’s minimum wage will increase from $8.25 per hour to $8.46 per hour. This adjustment is based on the federal Consumer Price Index for Urban Wage Earners and Clerical Workers in the South Region. For a full-time Florida employee (working 2080 hours), the increase equates to $436.80 more in wages per year. The 21-cent increase was based on the Consumer Price Index rising just over 2.5% from August 2017 to August 2018.

Restaurant and hotel employers who take a tip credit, may still take up to a $3.02 per hour tip credit against the new minimum wage. That means that starting January 1, 2019, tipped employees must receive at least $5.44 per hour in direct wages.

Here’s something else to keep in mind, Florida employers must remember to replace their current Florida minimum wage poster with the updated poster reflecting the new minimum wage on January 1, 2019. Posters can be found here in EnglishSpanish, and Creole.