In the News

#MeToo & a Time of Reckoning for the Law
Washington Lawyer (March 1, 2019)

"The MeToo movement has had a profound impact on the way that companies do business," Maciel says. "There's been a shift from a defensive, protective mode to a strong interest in taking another look at policies, procedures, and training pertaining to harassment in the workplace."

Maciel adds that companies "are starting to ask bigger questions like "How do we want to be viewed externally?" and "How can we create an atmosphere where our employees feel protected?" And companies are really looking at how they can create a culture of civility in the workplace.

When dealing with workplace violence committed by an employee, the employer can potentially face a number of different liabilities, said Kara Maciel, founding partner of the firm. Employers generally do not have the duty to control the conduct of another person absent a special relationship, she said, such as when an employee acts as an agent for the employer in a limited purpose.

“You have a duty as an employer to control the actions of employees, particularly when their actions are within the scope of their duties,” she said, such as making sure a security guard who has access to a gun or other weapon uses it correctly.

Fewer than 30% of private employers had workplace violence prevention programs and only about 20% provided workplace violence prevention training, according to the BLS.

“I think this is becoming more and more important and more people are having this stand-alone written policy and we recommend it,” said Kara Maciel, a Washington-based founding partner and chair of the labor and employment practice group of Conn Maciel Carey. “Zero tolerance for workplace violence, having workplace violence controls, record keeping and you want to train your employees on that.”   

Labor Risk Prevails Through the Supply Chain
Supply Chain Dive (August 7, 2017)

“Labor is the backbone of any supply chain operator,” Kara Maciel, chair of the labor and employment practice group at Conn Maciel Carey LLP, told Supply Chain Dive. “Those are the employees that are getting the product out into the marketplace … and ultimately down into consumers.”

The Trouble With Tips
Restaurant Business Online (June 17, 2014)

Most restaurants don’t mean to flout complex tipping rules, says Washington, D.C., attorney Kara Maciel. “It’s just difficult to find themselves in full compliance.” She and other hospitality lawyers suggest several practices to avoid pushing the legal envelope.

Early confusion over the ADA mandate to install pool lifts forced extensions of previous deadlines and U.S. Department of Justice clarifications on the rule. But a year and a half past the Jan. 31, 2013, compliance deadline, confusion has dissipated and more lifts have been installed, according to attorneys. Experts now see a second round of litigation on the horizon focusing on the operability and accessibility of the lifts.

 

"If the pool is in operation, they cannot have the lift covered. It has to be fully operational and functional the whole time," said Kara M. Maciel, labor and employment litigator.

Dueling appeals court rulings issued July 22 once again call into question the legality of federally run exchanges distributing premium subsidies to enrollees. While some industry observers tell HEX it's unlikely the case will ever make it to the Supreme Court, others are certain that's where it's headed. A ruling that prevents federally run exchanges from distributing subsidies, they say, would effectively end both the employer and individual mandates, and could prompt insurance carriers to launch a new wave of low-cost coverage options.

 

The DC Circuit judges looked at the language in the statute and felt the language was clear and unambiguous, notes Kara Maciel, an attorney in Epstein, Becker & Green's Labor and Employment, Litigation, and Health Care and Life Sciences practice. …

 

A ruling against the subsidies could be good news for employers because it would likely mean the end of the employer mandate, says Maciel. Some small employers are struggling with how they are going to comply with the "pay or play" provision of the ACA. "They would have a little more breathing room if there isn't an employee triggering the [employer mandate] provision," she tells HEX.

As a wave of lawsuits hits restaurants over tip pool violations, fine dining establishments packed with sommeliers, mixologists and other high-end specialists that tend to take on some managerial duties face the greatest risks of becoming targets for litigation or Department of Labor audits, attorneys say. …

 

"It's always an open question whether someone like a maitre d' or sommelier or expediter should be included in the tip pool," said Kara M. Maciel, a labor and employment litigator with Epstein Becker & Green PC. And the stakes for being wrong on this can be high, since if a tip pool is found to violate federal or state laws, it could invalidate the tip credit that the restaurant took or was banking on for that period of time, Maciel says. …

 

The same goes with catering hall banquet captains, who might be tasked with taking care of brides and grooms on their big days but who also often supervise staff, according to Maciel.

Six Tips on Not Getting Tripped Up by FLSA's Tipped Employee Rules
Thompson's HR Compliance Expert (May 30, 2014)

Employers need to make sure they are following both federal Fair Labor Standards Act requirements and state laws regarding tipped employees, said Kara Maciel of the firm Epstein Becker Green during a recent seminar focused on tipped employees. …

 

However, every state has its own set of rules regarding tipped workers and employers must make sure they also are compliant with those local requirements. States such as Hawaii, Massachusetts and New York are particularly challenging and in some cases have seen increased litigation over tip practices in recent years, Maciel noted. …

 

To make sure employers are compliant with the FLSA and relevant state laws Maciel recommends companies with tipped workers take the following steps:

 

  • Decide if having tipped workers makes sense for the business.

  • Decide if using a tip credit is the best practice.

  • Determine how much time employees are engaged in tipped and non-tipped tasks, and make sure the non-tipped tasks don't take up more than 20 percent of the employee's time.

  • Communicate all policies regarding tips to employees clearly, preferably in writing.

  • Make sure that no employees who could arguably be considered employers are included in the tip pool.

 

If mandatory tip pooling is in place, employers must make sure that the specific policies and the amount required for the tip pool are clearly communicated.

Hotel and restaurant operators should now be compliant with the U.S. Justice Department's changes to the Americans with Disabilities Act. If you're not sure what this means, the time to get caught up is now.

 

According to Maciel, these significant changes to structural barriers — as well as policies and procedures — will be challenging for the hospitality industry. However, training, Maciel says, is the best way to protect your hotel or restaurant from ADA policy and procedure violations.

Obama Administration Considers Cracking Down on Unpaid Internships
Special Report with Bret Baier (April 16, 2010)

Maciel pointed out that while unpaid internships are not illegal, the Department of Labor is ramping up its investigatory and enforcement efforts against companies that do not comply with the Wage and Hour Division's guidance on a bona fide training program.

 

She pointed out that trainees are exempt from the FLSA's minimum wage and overtime requirements so long as certain criteria are met. Criteria include issues such as the benefit of the training to the intern, the similarity of the training to an educational program, and any advantage that the employer receives from the activities of the intern.