SNHRA.org: Southern Nevada Human Resource Association: Newsletter: March 2008 Issue

IN THIS ISSUE:

LEGAL BRIEF:
Union-Supported petition initiative in nevada would prohibit employer required tip sharing

I-9 FORM CHANGES and documentation requirements

ShRM national conference and Exposition:
60th Annual
June 22–25, 2008 • Chicago, Illinois

member business focus:
Q&A with Lampe chiropractic

HUMOR LINES

Welcome to the Spring 2008 edition of our e-newsletter, RESOURCES. We are excited to produce this exciting forum for the communication of issues pertinent and relevant to HR Professionals.

We hope you enjoy the newsletter. It can only get better with your input and comments. If you have any articles for inclusion, comments or requests, please email them to Barry Lippold with the subject: "Resources Article" to: blippold@marcison.com.

Patrick Hicks, Founding Shareholder, and Wesley C. Shelton, Associate of Littler Mendelson review current law and an initiative petition regarding employer tip sharing, a hot topic in the service industry.

Sweeping changes may be coming to Nevada’s many service-based workplaces. On January 16, 2008, a Las Vegas-based union campaigning to organize dealers in Nevada filed an initiative petition with the Nevada Secretary of State seeking to reverse a decade-old state law permitting employers to institute tip-pooling arrangements among all employees involved in the provision of service to customers. The petition filed by the International Union of Gaming Employees (IUGE) needs at least 58,628 signatures by November 11, 2008, in order to go to the 2009 legislature. If the petition has the necessary signatures by November 11th but does not pass in the legislature in 2009, it will then be placed on the 2010 ballot for voters to decide.

The tip petition is similar to a bill supported by IUGE last year in the Nevada legislature that failed to come up for a vote in the Senate. While proponents of the tip petition portray it as a response to a recent court decision, the provisions of the petition go far beyond the facts of the case and would directly impact every tipped employee in Nevada and could possibly impact tipped employees in other states. Indeed, the petition would reverse more than 30 years of Nevada legal precedent and permit any dealer or other employee receiving tips to refuse to share those tips with fellow employees involved in rendering the service to customers. In addition, the petition would greatly expand the monetary and civil remedies available under Nevada wage and hour laws and increase the number of individual and class action lawsuits that can be filed against Nevada-based employers.

Current Law
Nevada employers have been legally prohibited from taking any part of the tips or gratuities of their employees for the better part of a century. Indeed, in 1931, recognizing the importance of tip income to employees in Nevada's heavily service-oriented economy, the Nevada legislature enacted what is currently known as NRS 608.160. That statute simply provides:

1. It is unlawful for any person to:

a. Take all or part of any tips or gratuities bestowed upon his employees.

However, while seeking to protect employee tips, the Nevada legislature also recognized the legitimacy of the long-standing practice of pooling tips to be shared among all employees involved in the provision of service to customers. For this reason, subsection 2 of NRS 608.160 specifically permits such tip-pooling arrangements.

2. Nothing contained in this section shall be construed to prevent such employees from entering into an agreement to divide such tips or gratuities among themselves.

Tip pooling has long been seen as a way to ensure that all employees involved in the provision of service benefit from the tips bestowed by customers. Subsequent case law has repeatedly upheld the practice of tip pooling in Nevada. Indeed, the Nevada Supreme Court has specifically ruled under NRS 608.160 that employers in Nevada may require their employees to pool tips as a condition of employment. Alford v. Harolds Club, 99 Nev. 670, 669 P.2d 721 (1983). Federal courts have also recognized that mandatory pooling of tips is a legal way to ensure that all employees involved in the service may share in the rewards of the service. Cotter v. Desert Palace, Inc., 880 F.2d 1142 (9th Cir. 1989); Moen v. Las Vegas Int'l Hotel, Inc., 402 F. Supp. 157 (9th Cir. 1975). NRS 608.160 in its current state, therefore, permits an employee who may not actually receive the tip but who performs work down the line of service that leads to the tip, to be able to share in the tip as part of his or her service.

The Union's Tip Petition
The IUGE petition does not change or enhance in any way the decade-long prohibition against an employer taking any part of the tip income of its employees. On the other hand, what the petition does is give the individual employee actually receiving the tip a veto over any agreement to share tips between co-employees involved in the provision of service. This tip veto is accomplished by two very significant changes to the wording of NRS 608.160.
First, the IUGE petition narrows the scope of the statute to protect only the employee at the end of the chain of service. In other words, only the employee actually receiving the tip from the customer is protected by the statute as amended by the petition. The IUGE petition would amend subsection (1)(a) of NRS 608.160 as follows (matter in italics is new; matter in brackets to be omitted):

1. It is unlawful for any [person] employer to:

a. Take all or part of any tips or gratuities bestowed upon his employees. Eligible employees receiving tips is defined as those who are the actual and direct recipient of the tips or gratuities.

Second, the IUGE petition then specifically prohibits an employer from requiring all employees involved in the provision of service to benefit from pooling tips. Instead, under the petition tip pooling is only legal where "eligible employees" agree to share tips. Eligible employees only may determine who will be included in the tip pool, if any. Eligible employees of course are only those employees actually receiving the tip from the customer.

Finally, the IUGE petition would significantly expand the number, and types of employment-related lawsuits that plaintiffs' attorneys can file against Nevada-based employers. In this regard, the petition does four significant things. First, the petition specifically creates a private right of action for all provisions of Chapter 608 of the Nevada Revised Statutes. This is a significant departure over current law that has entrusted the Nevada Labor Commissioner with the enforcement of many Nevada statutes. Second, the petition specifically authorizes class action lawsuits against employers. Third, it permits recovery of punitive damages in addition to money damages. Fourth, the petition mandates awards of attorneys' fees to plaintiffs' attorneys who prevail on any action under the Chapter.

What Would the Tip Petition Mean for Employees
All tipped employees in Nevada are affected by the tip petition, no matter the industry. Nevertheless, the Nevada gaming industry will be particularly affected. Unless an employee is the actual and direct recipient of the tip (in other words, unless the tip is handed to the employee), he or she has no right to share in tips. By permitting one employee in the chain of service to determine whether he or she keeps or shares tips with fellow employees, the IUGE petition arguably strips the right now enjoyed by many employees who contribute to the provision of service to fully participate in tip-pooling arrangements. This means the right of the bus person to receive tips would now be entirely dependant on the goodwill of his or her waiter or waitress. A dealer would also be able to refuse to share tips with other employees such as the pit clerk or pit boss. It is clear that the IUGE petition will directly and adversely affect the compensation of many thousands of employees in different industries all over Nevada.

What Would the Tip Petition Mean for Employers
The tip petition runs contrary to established case law allowing employers to require that employees pool their tips. Employers like the flexibility of tip pools because, among other things, job assignments are easier to implement if all employees share equally in tips. In the gaming industry, tip pools are sometimes instituted to lessen the possibility of tip hustling. Under the IUGE petition, Nevada employers would not be able to institute tip pooling on any level. As a practical matter, under the IUGE petition, tip pools may only be feasible for collectively bargained employees, which may be the real motivation behind the petition.
Another troubling aspect of the tip petition is that it would permit any employee, either individually or as part of a class, to initiate a civil action against an employer for allegedly violating any provision of Chapter 608 of the Nevada Revised Statutes. While, Nevada law already permits employees to file suit for unpaid wages, the Nevada legislature has charged the Labor Commissioner exclusively with enforcing most of the remaining statutes of the Chapter. If the petition became law, any employee believing his employer failed to abide by any provision of the Chapter would then be entitled to file a class action suit and could potentially recover punitive damages and attorneys' fees. This means Nevada employers may in the future see more class action lawsuits over topics such as ten-minute rest breaks, records of wages, the cost of uniforms, the posting of paydays, meal credits and any one of the myriad other subjects contained in Chapter 608.

Some of the Other Problems with the Tip Initiative
There are a host of other logistical questions raised with the tip initiative. For instance, how do employees agree on a tip-pooling arrangement? Is it by vote? If so what employees are eligible to vote: all employees or employees on a particular shift or job? Is a tip-pooling agreement done by a secret vote? If the agreement is not by vote, does it have to be in writing? How can a tip-pooling agreement, once finalized, be superseded? What if an employee does not want to participate in a tip-pooling agreement and wants to keep his or her own tips? Does this means that an "eligible employee" may effectively veto any tip-pooling arrangement because anyone who does not agree to pool tips must be excluded? The possible ramifications are endless.

Conclusion
The tip petition appears to be an attempt by the IUGE to curry favor among the very employees it seeks to represent, dealers. In giving absolute right over tips to the employee at the end of the chain of service, the petition effectively strips the host of other employees involved in the service of the rights they now enjoy under Nevada law. The IUGE petition also promises to be a boon to the plaintiffs' bar and will certainly diminish the importance of the Nevada Labor Commissioner.

In response, a number of organizations joined to file a complaint in state court challenging the petition. The complaint, which was filed on February 7, 2008, alleges that the petition does not comply with Nevada law regarding initiatives and that it violates both the United States and Nevada Constitutions. Plaintiffs seek declaratory relief that the Nevada Secretary of State be ordered to remove the initiative from the roll of validly submitted initiative petitions. A hearing on the matter is scheduled to take place in April 2008. While the future of this petition and outcome of the Plaintiffs’ challenge to the petition is uncertain, it is clear that both employers and employees should be wary of the IUGE tip petition.

Patrick H. Hicks is Founding Shareholder of Littler Mendelson’s Las Vegas and Reno offices. He can be reached at phicks@littler.com. Wesley Shelton is an Associate in Littler Mendelson’s Las Vegas office. He can be reached at wshelton@littler.com

The debut of a new I-9 form brings the opportunity to review some of the basics on handling the document, which has been around since the 1980s. The new form now conforms with regulations issued in 1997 (yes, you're reading that correctly) and alters the list of documents employees may use to establish their eligibility to work in the United States.

The U.S. Citizenship and Immigration Services (USCIS) has provided a list of frequently asked questions, along with a 48-page handbook for employers, to ease the shift to the new form.

What changes are in the new form?
The main changes relate to the documents employees must provide ? there's no change in how Form I-9 is filled out. New employees still must give their identity, state that they're eligible to work in the United States, and present supporting documents. They may either present one document from List A (establishing both identity and employment eligibility) or one document each from List B (identity) and List C (eligibility).

The employer then reviews the documents and certifies that they appear to be genuine and relate to the named employee and that to the best of its knowledge the employee is eligible for employment. The form is also used to recertify rehired workers and those whose initial eligibility documents may have expired and then been reissued.

The revised List A now contains five documents that may be used to establish both identity and eligibility:

U.S. passport (unexpired or expired);
Permanent Resident Card (Form I-551);
Unexpired foreign passport with a temporary I-551 stamp;
Unexpired foreign passport with an unexpired Arrival-Departure Record (Form I-94) for nonimmigrant aliens authorized to work for a specific employer; and
Unexpired Employment Authorization Document that contains a photograph (Form I-766, I-688, I-688A, or I-688B). This last listing has been added to List A as part of the I-9 revision.

The following five items no longer are on List A and may not be used because they lack sufficient features to help deter counterfeiting, tampering, and fraud:

Certificate of U.S. Citizenship (Form N-560 or N-561);
Certificate of Naturalization (Form N-550 or N-570);
Alien Registration Receipt Card (Form I-151);
Unexpired Reentry Permit (Form I-327); and
Unexpired Refugee Travel Document (Form I-571)

In another change, employees don't have to furnish their social security number if they don't want to, unless their employer participates in the USCIS' Electronic Employment Eligibility Verification Program (E-Verify). The instructions on photocopying and retaining Form I-9 now include information about electronically signing and retaining I-9 forms.

You need to complete the new version of Form I-9 only for new employees. You must use the revised Form I-9 when you reverify current employees. The form is available online at www.uscis.gov/files/form/I-9.pdf.

When to start using the new I-9
You should have begun using the new I-9 forms November 7, when they were issued. The new forms bear a revision date of June 5, 2007, found in the lower right corner and reading "(Rev. 06/05/07)N." The USCIS, however, has given employers a break in the form of a 30-day phase-in period during which you won't be penalized for using the old Form I-9. The grace period was to start upon notice in the Federal Register from the U.S. Department of Homeland Security (DHS). As of this writing, the DHS hasn't given notice.

The new form is available in English and Spanish. Employers in Puerto Rico may use either version to verify employees. All other employers may use the Spanish version as a translation guide but must complete the English version and keep it in their records.

Additional help
The new I-9 form includes two pages of instructions. It also states at the top that it expires June 30, 2008, so there may be new forms in your future.

The instructions, for example, remind you that you can't specify which documents you will accept from an employee and that you may face discrimination charges if you refuse to hire job candidates because their documents bear expiration dates.

You must make the instructions available to employees filling out the forms, and you may make preparers and translators available if employees can't fill out the forms on their own.

A new 48-page Handbook for Employers:
Instructions for Completing the Form I-9 is available at www.uscis.gov/files/nativedocuments/m-274.pdf.
The handbook was revised November 1, 2007, and contains color pictures of sample documents from the I-9 form's three lists of permissible documents. It also includes questions and answers on a host of topics. For more details, go to www.uscis.gov.

Copyright 2008 M. Lee Smith Publishers LLC, excerpted from Connecticut Employment Law Letter distributed by HRhero.com. This article is not intended as legal advice, which must always be tailored to individual needs and particular circumstances. Both M. Lee Smith Publishers and HRhero.com are popular internet sources of Human Resource information and review.

The SHRM 60th Annual Conference and Exposition is ready to take it's wings in the Windy City: CHICAGO!

After a record-breaking successful conference last year in our fair city, the conference moves to the shores of Lake Michigan for what is sure to be another amazing gathering of HR professionals from around the world.

Here are a few NEW things you can look forward to at the 2008 Annual Conference:

International Track—sessions will focus on international management strategies.

Strategic Persuasion & Talent Acquisition—An Executive Education program presented in partnership with the Wharton School.

Executive Coaching: Your Tool for Winning the Leadership Development Challenge—An Executive Education program presented in partnership with LORE International Institute.

China’s Economic Rise and its Critical HR Challenges for MNC’s—An Executive Education program presented in partnership with Tsinghua University, China.

Lionel Richie —An evening with the mega-star and his countless hits

To register for the conference, visit www.shrm.org/conferences/annual/registration.asp

To find out more about the conference, visit
www.shrm.org/conferences/annual/

For our Member Business Focus for this issue, we sat with Brandi and Dr. Steve Lampe of Lampe Chiropractic, a Member Business that recently joined SNHRA and has been very visible recently partnering in various spinal health screenings in Henderson. When we heard about their amazing SNHRA/Employee benefit offer, we jumped at the opportunity to interview the dynamic duo...

Why did you decide to join SNHRA?
We were introduced to SNHRA through a patient and thought it would be an excellent opportunity to network with local businesses within the community and who better network with than with the department that knows their company and employees the best?

What distinguishes your practice from that of many other Chiropracters?
Most importantly, our technique and its focus. Our focus is on your nervous system and keeping it healthy. Your spine protects the nervous system and if you have misalignments then the core of your health is affected. We analyze posture and correct structural problems in your spine and nervous system and show your progress through periodic X-rays. We help infants, children and adults achieve a healthier lifestyle through education and maintenance of the spine. We believe in familes and working with the people of our community.

For those of us who don’t know, what are the differences between medical doctors and chiropractors?
Chiropractors utilize a drugless approach to healing through manipulation of the spine in order to optimize the nervous system allowing the body to heal itself. Chiropractors attend postgraduate college just like medical doctors do with medical school. Chiropractic and medical schools are both comparable in the total number of study hours with Chiropractic having a greater focus on Anatomy and Physiology.

What are the advantages in receiving chiropractic care?
Not only does Chiropractic care address the traditional musculoskeletal problems of neck and back pain, but studies have proven that Chiropractic helps with many other health issues such as High Blood Pressure, Migraines, Asthma, Allergies, Colic in infants, and the list goes on. As a matter of fact, a study published in the October 11, 2004 issue of the Archives of Internal Medicine showed that including chiropractic care into health plans actually significantly reduces the health care expenditures for those in the plan as well as reducing the overall cost to the insurance company for that plan.

One of the reasons we approached you for the Member Focus this month was that we heard that you offer a great benefit to HR professionals for their employees. Tell us a little about that...
We currently offer a new patient special to the general public of X-rays, consultation and Dr's report for $60 ($205 value).

We are offering all employees of SNHRA Members the same services (X-rays, consultation and Dr's report) for only $30. This is a comprehensive evaluation of your employees' spinal health for less than the cost of a set of X-rays.

In addition, we'll provide new patients a complimentary insurance verification.

What do you plan to provide HR departments to better inform their employees about this often misunderstood form of health care?
We love to educate on the benefits of corrective care through health talks and spinal screenings. This is something we currently do with Whole Foods and Club Sport on a weekly basis and are proud to say that we are the Chiropractor with whom they choose to partner.

Lampe Chiropractic is a corrective care family practice located in Henderson off of Lake Mead Parkway, in the Lake Mead Center office complex, 133 W. Lake Mead Pkwy, Suite #200, Henderson, NV 89015. You can reach Brandi Lampe or Dr. Steve Lampe at info@lampechiropractic.com, or visit their website at www.lampechiropractic.com. Phone: 702-531-3338

Put employees into a room with only a table and two chairs. Leave them without any instruction and check back on them in two hours:

* If they have taken the table apart...
...assign them to engineering.

* If they are counting butts in the ashtray...
...put them in finance.

* If they are talking to the chairs...
...assign them to personnel.

* If they are sleeping...
...they are management material.

* If they do not notice when you walk in...
...place them in security.

* And if they have left early...
...put them in sales.

From www.freemaninstitute.com

We hope that all of our Members and Friends find the articles contained within R E S O U R C E S useful in your HR environment. Many thanks to all of you who responded to our requests for articles and research for this newsletter.

If you have anything you wish to contribute to the next issue, please do not hesitate to email Barry Lippold at blippold@marcison.com.