EEOC (Don't leave your job without them!)

The U.S. Equal Employment Opportunity Commission/EEOC

Filing a Charge of Employment Discrimination
Note: Federal employees or applicants for Federal employment should see Federal Sector Equal Employment Opportunity Complaint Processing.

Who Can File a Charge of Discrimination?
Any individual who believes that his or her employment rights have been violated may file a charge of discrimination with EEOC.

In addition, an individual, organization, or agency may file a charge on behalf of another person in order to protect the aggrieved person's identity.

How Is a Charge of Discrimination Filed?
A charge may be filed by mail or in person at the nearest EEOC office.

Individuals who need an accommodation in order to file a charge (e.g., sign language interpreter, print materials in an accessible format) should inform the EEOC field office so appropriate arrangements can be made.

Federal employees or applicants for employment should see Federal Sector Equal Employment Opportunity Complaint Processing.

What Information Must Be Provided to File a Charge?
The complaining party's name, address, and telephone number;

The name, address, and telephone number of the respondent employer, employment agency, or union that is alleged to have discriminated, and number of employees (or union members), if known;

A short description of the alleged violation (the event that caused the complaining party to believe that his or her rights were violated); and

The date(s) of the alleged violation(s).

Federal employees or applicants for employment should see Federal Sector Equal Employment Opportunity Complaint Processing.

What Are the Time Limits for Filing a Charge of Discrimination?
All laws enforced by EEOC, except the Equal Pay Act, require filing a charge with EEOC before a private lawsuit may be filed in court. There are strict time limits within which charges must be filed:

A charge must be filed with EEOC within 180 days from the date of the alleged violation, in order to protect the charging party's rights.

This 180-day filing deadline is extended to 300 days if the charge also is covered by a state or local anti-discrimination law. For ADEA charges, only state laws extend the filing limit to 300 days.

These time limits do not apply to claims under the Equal Pay Act, because under that Act persons do not have to first file a charge with EEOC in order to have the right to go to court. However, since many EPA claims also raise Title VII sex discrimination issues, it may be advisable to file charges under both laws within the time limits indicated.

To protect legal rights, it is always best to contact EEOC promptly when discrimination is suspected.

Federal employees or applicants for employment should see Federal Sector Equal Employment Opportunity Complaint Processing.

What Agency Handles a Charge that is also Covered by State or Local Law?
Many states and localities have anti-discrimination laws and agencies responsible for enforcing those laws. EEOC refers to these agencies as "Fair Employment Practices Agencies (FEPAs)." Through the use of "work sharing agreements," EEOC and the FEPAs avoid duplication of effort while at the same time ensuring that a charging party's rights are protected under both federal and state law.

If a charge is filed with a FEPA and is also covered by federal law, the FEPA "dual files" the charge with EEOC to protect federal rights. The charge usually will be retained by the FEPA for handling.

If a charge is filed with EEOC and also is covered by state or local law, EEOC "dual files" the charge with the state or local FEPA, but ordinarily retains the charge for handling.

How Is a Charge Filed for Discrimination Outside the United States?
U.S.-based companies that employ U.S. citizens outside the United States or its territories are covered under EEO laws, with certain exceptions. An individual alleging an EEO violation outside the U.S. should file a charge with the district office closest to his or her employer's headquarters. However, if you are unsure where to file, you may file a charge with any EEOC office.
For answers to common questions about how EEO laws apply to multinational employers, please see:
The Equal Employment Opportunity Responsibilities of Multinational Employers
Employee Rights When Working for Multinational Employers

Rocket Science 101. Who gets the tip?

A Mandatory Gratuity Is Just a Tip, and Thus Not Mandatory, a Prosecutor Says

BY JANE GOTTLIEB

September 15, 2004

As it turns out, a tip is just a tip, even if you put “mandatory” in front of it.

Charges were dropped yesterday against a Long Island man who was arrested last week for failing to leave a required 18 percent gratuity at Soprano’s Italian and American Grill in Lake George, N.Y.

The Warren County district attorney, Kathleen B. Hogan, said that she had determined that the man, Humberto A. Taveras, could not be forced to pay a gratuity.

Ms. Hogan said, “A tip or gratuity is discretionary, and that’s what the courts have found.” But the dispute over a tip of a few dollars still cost Mr. Taveras, 41, of Roslyn Heights, several hundred dollars in legal fees.

“Basically, they stated that you can’t enforce a gratuity, it’s voluntary,” said Mr. Taveras, who was on a train going home from Manhattan yesterday evening while his lawyer completed paperwork in Lake George, 60 miles north of Albany.

On September 5, Mr. Taveras and his party, which included his wife, Marie, another couple, and five children of both couples, were charged $77.43 for their meal, and an additional $13.73 for a tip.

Joe and Tina Soprano, the restaurant’s owners, said the party of nine had not paid any part of the 18 percent gratuity required of all groups of six or more. Mr. Taveras said he had left a 10 percent tip.

The Sopranos summoned the police, and soon Mr. Taeras was arrested and charged with theft of services.

Mr. Taveras said he had seen no notice of the tipping policy on the menu, although Mr. Soprano said it was included on all menus. But Mr. Taveras said that the group had decided the food was not particularly good, and so did not pay the 18 percent.

Mr. Taveras was taken away in a police car, fingerprinted, subjected to national publicity.

He said he eventually paid his lawyer a few hundred dollars to pursue the matter. Mr. Taveras said he was not sorry. “I didn’t like that my children had to hear, ‘Your dad walked out on a bill, ‘and stuff like that,” Mr. Taveras said.

Several telephone calls to the Soprano’s restaurant yesterday were not answered.

Mr. Taveras has dined at several restaurants since the arrest, and, he said, he has left some good tips.

Tax Law

Okay, boys and girls, its time to brush up on your Tax Law. I know, its not fun reading, but I'm trying to make it as easy as possible for you. This way you won't have to search the law libraries hither and yon, looking for that one piece of information that applies to you, your tip money and your employer's records of your tip money. (In other words good luck getting your tips from your employer.)


From the National Italian American Bar Association Digest (review of particular cases) (a review of a case involving a tax law issue with respect to restaurants and waiters’ reporting of tip income)...“Tax Law United States v Fior D'Italia, Inc.

The Internal Revenue Service (IRS) is authorized to assess a restaurant's income from tips by using an aggregate estimate of all the tips that a restaurant's customers gave to its employees. At issue in this case was the proper interpretation of a tax statute. The IRS contended that it could use an aggregation method to determine income from tips, while the restaurant contended that the IRS was required to determine total [*76] tip income by estimating each individual employee's tip income separately, and then add the individual estimates together to create a total. In 1991 and 1992, the reports provided to the Fior D'Italia restaurant by the restaurant's employees showed that the total tip income amounted to less than what was reported by the employees. The restaurant paid its FICA tax based on the lower amount. This discrepancy led the IRS to conduct a compliance check. The check led the I.R.S. to issue an assessment against the restaurant for additional FICA tax. The government's efforts to calculate the added tax it found owed to the IRS used an aggregation method rather than totaling the income of employees separately. The Court found that the aggregate estimating method does not fall outside the bounds of what is reasonable. The potential for errors from calculating an aggregate estimate did not render the estimate unreasonable since the restaurant remained free to challenge the accuracy of the estimate. The mere possibility for abuse by the I.R.S. was insufficient to preclude the use of an aggregate estimate. Justices Souter, Scalia, and Thomas dissented due to the Court's broad interpretation of the tax statute.”

NY Labor Law § 191. Frequency of payments

Okay folks! Let's get busy! There is no better time than the present to brush up on your New Labor Law. You just never know when it might come in handy. Oh, and, don't forget that old ancient Chinese proverb--Knowledge is Power.

NY CLS Labor § 191 (2004)§ 191. Frequency of payments
1. Every employer shall pay wages in accordance with the following provisions:
a. Manual worker.--
(i) A manual worker shall be paid weekly and not later than seven calendar days after the end of the week in which the wages are earned; provided however that a manual worker employed by an employer authorized by the commissioner pursuant to subparagraph
(ii) of this paragraph or by a non-profit making organization shall be paid in accordance with the agreed terms of employment, but not less frequently than semi-monthly.
(iii) The commissioner may authorize an employer which has in the three years preceding the application employed an average of one thousand or more persons in this state or has for one year preceding the application employed an average of one thousand or more persons in this state and has for three years preceding the application employed an average of three thousand or more persons outside the state to pay less frequently than weekly but not less frequently than semi-monthly if the employer furnishes satisfactory proof to the commissioner of its continuing ability to meet its payroll responsibilities. In making this determination the commissioner shall consider the following:
(A) the employer's history meeting its payroll responsibilities in New York state or if no such history in New York state is available, other financial information, as requested by the commissioner, which will assist the commissioner in determining the likelihood of the employer's continuing ability to meet payroll responsibilities;
(B) proof of the employer's coverage for workers' compensation and disability;
(C) proof that there are no outstanding warrants of the department of taxation and finance or the department of labor against the employer for failure to remit state personal income tax withholdings or unemployment insurance contributions; and
(D) proof that the employer has a computerized record keeping system for payroll which, at a minimum, specifies hours worked, rate of pay, gross wages, deductions and date of pay for each employee. If the employers' manual workers are represented by a labor organization, the commissioner shall not grant an employer's application for authorization under this subparagraph unless that labor organization consents thereto. Upon notice to the employer and an opportunity to be heard, the commissioner may rescind such authorization whenever the commissioner has determined, based upon the factors enumerated above, that the employer is no longer able to meet its payroll responsibilities as previously authorized.
b. Railroad worker.-A railroad worker shall be paid on or before Thursday of each week the wages earned during the seven-day period ending on Tuesday of the preceding week; and provided further that at the written request and notification of address by any employee, every railroad corporation, with the exception of those commuter railroads under the jurisdiction of the metropolitan transportation authority, shall mail every check for wages of such employee via the United States postal service, first class mail.c. Commission salesman.--A commission salesman shall be paid the wages, salary, drawing account, commissions and all other monies earned or payable in accordance with the agreed terms of employment, but not less frequently than once in each month and not later than the last day of the month following the month in which they are earned; provided, however, that if monthly or more frequent payment of wages, salary, drawing accounts or commissions are substantial, then additional compensation earned, including but not limited to extra or incentive earnings, bonuses and special payments, may be paid less frequently than once in each month, but in no event later than the time provided in the employment agreement or compensation plan. The employer shall furnish a commission salesman, upon written request, a statement of earnings paid or due and unpaid.d. Clerical and other worker.--A clerical and other worker shall be paid the wages earned in accordance with the agreed terms of employment, but not less frequently than semi-monthly, on regular pay days designated in advance by the employer.

NY Labor Law § 196-d. Gratuities

An Open Letter To All My Catering Waiter Friends:

I'm still hearing the same old stories. I'm still hearing that same old complaint from all my catering and restaurant waiter friends and that is: Management won't pay us! They are stealing our money! They are keeping our tips! We need a good attorney! We want to sue! And, my answer to that is, please do.

If they won't pay you the money you rightfully earned, then I suggest that you bring charges immediately, and force them to spend it on attorneys. Believe me, being served with a subpoena is a perfect way to force management to wake up and smell the attorneys bills that are about to start arriving.

You can find all the necessary details that you need right here on this page or my home page, including a recent Court of Appeals ruling in Bynog vs. Cipriani, decided December 2nd 2003.

I have also included what I have of the NY Department of Labor, Labor Law. I know that you will find this information informative and helpful.

You must realize that your rights as a worker are not delivered to you on a sliver platter. You must take a stand and fight for what is rightfully yours.

Here is the Labor Law on gratuities. It seems pretty clear here, but don't kid yourself, its only worded to sound like it protects you, in actuality, it means they don't have to pay you.

NY CLS Labor § 196-d (2004)
§ 196-d. Gratuities No employer or his agent or an officer or agent of any corporation, or any other person shall demand or accept, directly or indirectly, any part of the gratuities, received by an employee, or retain any part of a gratuity or of any charge purported to be a gratuity for an employee. This provision shall not apply to the checking of hats, coats or other apparel. Nothing in this subdivision shall be construed as affecting the allowances from the minimum wage for gratuities in the amount determined in accordance with the provisions of article nineteen of this chapter nor as affecting practices in connection with banquets and other special functions where a fixed percentage of the patron's bill is added for gratuities which are distributed to employees, nor to the sharing of tips by a waiter with a busboy or similar employee. Add, L 1968, ch 1007, § 1, eff Oct 1, 1968.