The RISQ RECAP – April 4th – April 8th, 2022

Is an Emoji Worth a Thousand Words? The Impact of Emojis in the Workplace

“Work does not always occur within the physical confines of a workplace. Indeed, due to the interconnectivity of today’s world, work often takes place in the digital space, where employees regularly use pictorial icons and images known as emojis and emoticons to express themselves. Although emojis and emoticons are not hieroglyphics, they can be difficult to interpret, and courts have increasingly had to grapple with them as evidence in discrimination and harassment claims.”  Full Article

– Littler Mendelson

Restaurant’s Mandatory Service Charge is Not a “Tip” Under FLSA

“Tipped employees at Miami’s Nusr-et Steakhouse sued their employer, alleging that the restaurant violated the Fair Labor Standards Act by counting payments to employees from the restaurant’s mandatory 18% “service charge” as part of the employees’ “regular rate of pay,” rather than as tips. The district court rejected the employees’ claim and granted the restaurant’s motion for summary judgment, holding that the service charge was not a tip. In Compere v. Nusret Miami, LLC, 2022 U.S. App. LEXIS 7293 (11th Cir. Mar. 18, 2022), the Eleventh Circuit affirmed.”  Full Article

– Eversheds Sullivan

Recall Message! Do Yourself (and Your Employer) a Favor and Sharpen Your Email Game

“Email isn’t a new technology. By now, we all know that our work emails aren’t private, and most of us exercise some discretion in deciding what to “put in writing” in our business communications. We’ve heard horror stories of incriminating emails turning up in business lawsuits. Yet, despite our awareness of these risks, the problem persists. Time and again, bet-the-company lawsuits turn on the content of internal work emails. And it’s not just so-called “smoking gun” emails where an employee admits wrongdoing. More often, the key emails are seemingly innocuous co-worker communications that, due to their poor wording, are taken out of context and made to look malicious, heavy-handed, or insensitive.”  Full Article

– Robbins Kaplan

BREAKING NEWS: OFCCP Releases New Directive Setting Expectations of Contractors During Compliance Reviews

“Directive 2022-02: Effective Compliance Evaluations and Enforcement issued March 31, 2022 is intended to “strengthen OFCCP compliance evaluations and reduce delay by promoting the timely exchange of information”. It also sets a number of expectations for contractor conduct and compliance during reviews, rescinding a number of previous Directives that set out transparency and expectations and timelines for submission of information – commonly known as previous OFCCP Director Craig Leen’s Four Pillars.”  Full Article

– Jackson Lewis

Department of Labor Issues Strong Caution on Use of Cryptocurrencies in 401(k) Plans

“The U.S. Department of Labor (the DOL) has issued a compliance release that provides strong caution against ERISA fiduciaries of 401(k) and 403(b) plans including cryptocurrencies as plan investment options. In an unusual move, the DOL has cautioned fiduciaries to “exercise extreme care before they consider adding a cryptocurrency option to a 401(k) plan’s investment menu for plan participants.”  Full Article

– Cozen O’Connor

Five Employment Law Remarks in President Biden’s State of the Union Address

“In his March 1, 2022 State of the Union Address, President Biden briefly touched upon a handful of employment reforms he is urging Congress to pass. This article is intended to help employers understand five of President Biden’s remarks, summarize what those remarks referenced, and describe the status of potential legislation relating to them.”  Full Article

– Venable