Termination - the Capital Punishment of Employment


On July 14, 2016, the National Labor Relations Board found that an employee, Juan Marana, who was told he was fired and told the same day that he wasn’t fired, was unlawfully discharged in violation of the National Labor Relations Act ("NLRA").  Marana was not part of a union and was not seeking to become part of a union. 

Marana worked for a paving company and, along with several other members of his paving crew, complained to the owner of the company, Robert Bates, about a supervisor who had a habit of yelling, cursing and using racial slurs toward the crew.  Marana and his coworkers also complained about being asked to pave over damp ground, less than optimal conditions. 

Bates convened a meeting to respond to the employees’ complaints of poor working conditions and spent a portion of the meeting criticizing the performance of Marana and another employee.  Marana said all problems at the job site were due to the supervisor’s aggressive and inappropriate attitude.  In response, Bates fired Marana, telling him to “Get the f*** out of here.” After the meeting, Bates told Marana he wasn’t fired, and Marana continued working at the company.

The Board found that Marana understood he was fired for a short time and, even though Marana didn’t suffer any losses as a result of his hour or so of unemployment, he was still unlawfully fired for engaging in concerted activity under the NLRA.  Calling terminations the “capital punishment of employment,” the Board said that the employer’s actions sent a message that it was willing to take “extreme action” and that Marana, or some other employee, would likely understand that the employer likely wouldn’t change its mind the next time the employee engaged in protected activity.  Bates Paving & Sealing, Inc., 364 NLRB No. 46 (2016).

What is concerted activity?

Section 7 of the NLRA protects employees who act together in an effort to improve pay and/or working conditions.  You don’t have to be in a union to be protected by this law, and if you’re fired, suspended, or otherwise punished for taking part in protected group activity, you can seek relief from the National Labor Relations Board.

Concerted activity generally requires two or more employees to act together, but a single employee can engage in concerted activity if he or she is acting on behalf of coworkers or if he or she involves coworkers before acting (e.g., sends out a message, talks with coworkers, posts on social media, etc.).

Personal complaints, gripes, and vendettas aren’t protected by the NLRA.  So if you’re posting complaints about your boss on Facebook, that’s probably not protected activity under Section 7.  However, if you’re posting on Facebook about how your employer should increase wages or change the place you work in some (positive) way, and your coworkers respond, your actions could be protected by the NLRA.  The same kind of activity can happen elsewhere (around the water cooler, in the break room, etc.) and still be protected.

Call us if you’ve got questions about your rights under the National Labor Relations Act. 

Servers beware!


The Hostess City has been voted the 9th best city in the world according to Travel + Leisure.  That means a lot of visitors, which is great for the hospitality industry.  But what does it mean for employees in the service/hospitality industry?  What should servers, bartenders, and bussers look out for?

Tipped Employees

If you work as a tipped employee (whether you’re a server, bartender, busser, hostess, or in some other position), and your employer isn’t paying you $7.25/hour (or more - and hopefully it's more), your employer must follow a special set of rules and regulations. 

What is a tip credit? 

The Fair Labor Standards Act allows employers to take a credit toward the hourly minimum wage payment for a “tipped employee” if the employer meets certain requirements.  A tipped employee is any employee who receives $30 or more per month in tips (a very low threshold – who could live or do anything with only $30/month in tips?).  The employer also has to tell the employee (verbally or in writing) the following:

  1. The amount of the cash wage the employer will pay to the tipped employee (must be at least $2.13/hour);
  2. The additional amount claimed by the employer as a tip credit (must not be more than $5.12/hour – the difference between the cash wage and $7.25, the current minimum wage);
  3. That the tip credit claimed by the employer cannot exceed the amount of tips actually received by the tipped employee (that’s right – the employer CANNOT take the credit if you don’t make enough to meet the $7.25/hour threshold);
  4. That all the tips the employee earns are his or hers to keep unless the employee is part of a valid tip pool (more on that later); and
  5. That the tip credit will not apply to any tipped employee unless the employee has been told about these provisions.

Here are some problem areas to look out for:

  • What about all that sidework?

Most employees in the food/beverage industry have to perform sidework at some point during their shift.  When I was a server, I had to roll what felt like a million sets of silverware before I could leave for the night.  Other sidework duties may include general food prep, cleaning floors, washing dishes, setting up the bar, or refilling/restocking condiments and supplies.  When this work exceeds 20% of the total hours you’re working (in other words, you’re spending most of your time doing sidework instead of serving), your employer should pay you the full cash minimum wage for those hours.  If you really are rolling a million sets of silverware during your shift, there’s probably a problem.  Call us for a free consultation if you’re concerned about not receiving the full minimum wage.

  • Is your boss keeping any of your tips?

That’s not allowed.  If your employer takes advantage of the tip credit, you must be allowed to keep any and all tips you earn during your shift.  If your employer is forcing you to give part of your tips to kitchen workers or other non-tipped employees (e.g., a hostess or some other worker) this could be in violation of the Fair Labor Standards Act (in the absence of a valid tip pool). 

  • What is a valid tip pool?

If you’re a server, you’ve probably been part of a tip pool – meaning you had to give other servers or the bartender a certain percentage of your tip.  The FLSA allows this under certain circumstances and doesn’t impose any particular percentage or minimum.  But you cannot be required to share tips with someone who typically doesn’t receive any tips at all.  In other words, if you’re being forced to give part of your tips to someone in the kitchen, a busser, or a hostess and those people don’t get any tips from customers, call us to talk about your options.

  • What about those times you work a lot?

If you work more than 40 hours in a week, you’re entitled to overtime based on the full minimum wage, not the cash wage you’re paid for normal working hours.  In other words, if you’re paid $2.13/hour and your boss takes a tip credit of $5.12/hour, you should be making (through tips and cash) $10.88/hour for hours you work over 40.  And your employer can’t take a larger tip credit on those overtime hours than he or she does on your normal hours.  In other words, you need to make more money during your overtime hours, or your boss needs to be paying you the difference.

The Hostess City’s fame and beauty will hopefully bring those in the service industry a lot of tips, but beware if your employer is taking the tip credit and isn’t paying you what you’re owed.  Call us for a free consultation to talk about your legal rights.