TODAY'S FAIR SHOTS - March 17th, 2016
1-Here's a Tip: Pay Your Servers for Their Work in Cash
2-Texas AFL-CIO to Convene News Conference on Minimum Wage Bills
3-Veteran Child Protective Services Workers Explains Why Privatization Will Fail
4-Dramatic Testimony Against 'Sanctuary Cities' Bill Leads Committee Chair to Say Bill Has 'Long Way to Go to Get This Right'
5-ULLCO Opposes Voucher, Pension Bills
6-Texas AFT Supports Major Public School Finance Bill
7-AFL-CIO Reiterates Support for Comprehensive Immigration Reform
1) In doing research for the set of minimum wage bills that will be heard in the House Business and Industry Committee on Monday, Texas AFL-CIO Communications Directors, Ed Sills, ran across a couple of nasty wrinkles in the law on tipped wages that surprised us in the Texas AFL-CIO office.
Under the federal Fair Labor Standards Act, a tip is the property of a tipped employee. A server might choose to share with those who bus tables, but that is the choice of the server under the law.
Nevertheless, we have heard ample anecdotal evidence that many restaurant employers seize a portion of tips. A couple of the bills up for consideration Monday would reinforce the FLSA protections by declaring in state law that tips belong to servers.
Even when employers follow the FLSA in good faith, two provisions you might not be aware of work against servers.
If, as a customer, you expect a tip to go to the person who served you, consider these provisions:
--If you pay a tip using your credit card, the employer has the option of deducting the credit card service fee associated with that tip. Those fees can run several percentage points. The easy way to avoid this, if you can, is to tip in cash;
--When you pay a mandatory service charge at a restaurant, it turns out the employer is not required to hand over a nickel of it to servers under the law. That is because the money is considered part of the charge for the meal, rather than a gratuity.
Set service charges are a regular feature at many fine restaurants, especially for larger parties. Making certain that all your tip goes to servers might be sticky if the restaurant insists that such charges are "mandatory." Getting around this might require you to ask management, possibly ahead of time, to allow you to pay a service charge in cash.
The web site workplacefairness.org gets into these and other issues on tipped employees:
12. Even though most of my customers pay with a credit card, it costs me tip money. Not only does my employer deduct a "service fee" from my tips, but I'm also required to wait to receive my tips until the employer gets the money from the credit card company, which can take days or weeks. Is my employer allowed to do this?
Where tips are charged on a credit card and the employer must pay the credit card company a percentage on each sale, then the employer may pay the employee the tip, less that percentage. This charge on the tip may not reduce the employee's wage below the required minimum wage. The amount due the employee must be paid no later than the regular pay day and may not be held while the employer is awaiting reimbursement from the credit card company.
13. My employer requires that parties over 6 pay a mandatory 15% service charge. The customers did not pay any additional tip as a result. While I thought my employer was going to give me that amount, some of it was withheld, so that I didn't get a full tip on that table. Is my employer allowed to do this?
Unfortunately, yes. If the employer sets the amount of the gratuity, the money is considered corporate income for the business; it is not considered a tip for employees. By law, a "tip" is deemed to be a gift from the customer to the server--whether a customer gives a tip and the amount of the tip is at the discretion of the customer. If the tip is set by the establishment, there is no longer any customer discretion. Consequently, the employer has the right to give all, some or none of the so-called "gratuity" to you as a server, and must treat whatever is given to you as wages, not tip income, for tax purposes.
Read more about tips: http://www.workplacefairness.org/tipped-employees#9
The q-and-a on service charges is squarely based on a Department of Labor web site that may be found here: https://www.dol.gov/whd/regs/compliance/whdfs15.htm
2) To the list of minimum wage bills set for Monday's hearing that we noted in this space yesterday, add the newly scheduled HJR 56 by Rep. Chris Turner, D-Arlington, a proposed constitutional amendment that includes a minimum wage increase to $10.10 an hour.
The Texas AFL-CIO posted this news release today, pointing toward Monday's hearing on bills to raise the minimum wage:
3) Child Protective Services caseworkers fear a proposed move toward privatization of many of their agency's functions and do not believe the legislative leadership is taking their concerns into account, the Texas Tribune reports.
The United Labor Legislative Committee OPPOSES HB 6, discussed in the article. The Tribune features a concise, powerful explanation of why privatization using non-profits is unlikely to work from a dedicated veteran of 30 years in the field:
For 30 years, Sheila Hazley worked to ensure that abused and neglected children were settling into foster homes and getting the care they needed. Now, the retired caseworker and manager for the Texas Department of Family and Protective Services is side-eyeing a legislative proposal to have nonprofit organizations do the same work she and her team did.
Under House Bill 6 - part of a sweeping plan to revamp Texas' child welfare system - the state would slowly create a "community-based care" model, which would allow contracted organizations to monitor children in foster care and adoptive homes and those who have been placed by the state into a relative's home. That would include making sure children are settling into their new homes and their health needs are being met.
Some of that work is already done by private organizations. Former and current state caseworkers and advocates for children say more organizations doing case management could be problematic for both children and state employees. They worry about knowledgable state workers losing their jobs, contractors having trouble placing children with behavioral and mental health issues and not enough qualified nonprofits or local governments stepping up to help.
"It is a good philosophy, and if we could do it, it would be great for families and children, but the services aren't available," Hazley said. "So when our representatives are talking about it, they're talking about it in an ideal world ... but unfortunately, we don't live in an ideal world."
Read more: https://www.texastribune.org/2017/03/16/caseworkers-fear-community-based-care-push-legislature/
4) The good news on SB 4, the "sanctuary cities" bill that was the subject of a marathon hearing in the House State Affairs Committee that lasted past midnight today, is that the committee clearly listened and expects to make significant changes in what came over from the Texas Senate.
From Ed Sills:
I stayed through several evening hours of the hearing so I could witness the anti-SB 4 testimony of my wife, whose father was undocumented and worked an all-too-short life to build a future for his family, and my daughter, who has internalized the stories in both sides of her family and used that and a song by Groucho Marx ("Whatever it is, I'm against it") to make her case for killing the bill.
I saw incredibly poised children, some of them teary, worry aloud about the day when they might arrive home from school to find their father or mother gone. One 11-year-old girl declared, "My Daddy's not an alien. He's a human being."
I saw proud undocumented workers who fled intolerable situations and just want to get by. I saw women who escaped assaults and worse. I saw Mexican-Americans like my wife who were asked too many times to show identification just to go about their everyday business as citizens on the U.S. side of our border with Mexico.
Proponent of SB 4 have emphasized "the rule of law." Law enforcement professionals testified that phrase clearly includes the ability of police to gain the trust of communities. That trust, many witnesses said, would be compromised by SB 4.
SB 4 was left pending, a sharp contrast to the committee's Senate counterpart, which voted the bill out immediately after its marathon session.
The Texas Tribune reports Committee Chair Byron Cook, R-Corsicana, said the bill will percolate in the committee for some time:
The chairman of the powerful committee that determines whether immigration proposals will move forward in the Texas House said Thursday he'd like to see the current proposal to outlaw sanctuary jurisdictions scaled back.
A "sanctuary" jurisdiction is the common term for government entities and college campuses that don't enforce federal immigration laws. Passing a bill is considered a priority for Gov. Greg Abbott this session but state Rep. Byron Cook, R-Corsicana, the chairman of the House State Affairs committee, said he is in no hurry to rush through the process.
"We've got a long ways to go to get this right," Cook said at the Capitol the morning after a marathon hearing on the current measure, Senate bill 4 by state Sen. Charles Perry, R-Lubbock. The legislative session ends on May 29.
The anti-"sanctuary city" proposal has evolved over the last six years from a bill that would let local police officers ask people about their immigration status to the current version that would also punish local sheriffs, police officers and constables for not honoring requests, known as detainers, from federal Immigration and Customs Enforcement officers to hand over undocumented immigrants in custody for possible deportation.
Read more: https://www.texastribune.org/2017/03/15/house-committee-hears-makes-changes-anti-sanctuary-cities-bill/
5) The United Labor Legislative Committee wasn't in an especially ornery mood yesterday. But labor's legislative arm did OPPOSE five pieces of legislation that cover two very important topics, education and pensions. ULLCO:
OPPOSED SB 3 by Sen. Larry Taylor, R-Friendswood, a private school voucher bill that will receive a hearing before the Senate Education Committee, which Taylor chairs, at 9 a.m. Tuesday, in Room E1.028. ULLCO, which has opposed private school voucher plans for decades, joined Texas AFT in opposing the bill.
OPPOSED SB 509 by Sen. Joan Huffman, R-Houston, which would mandate separate reports by outside firms on five statewide retirement systems that serve tens of thousands of public employees. Systems that help teachers, state employees, local employees and others through retirement are already under ongoing scrutiny from a variety of sources. Mandating privatized studies every two years (for the large funds) would not be likely to add appreciably to the body of knowledge already available.
OPPOSED SB 936 by Huffman, which would create a joint interim committee to study retirement systems in Texas. Again, pension systems are already in the center ring and legislative committees with jurisdiction over pensions study them routinely.
OPPOSED SB 151 by Sen. Paul Bettencourt, R-Houston, a handcuffing bill that would require an election for local governments to address pension fund shortfalls through bonds.
OPPOSED SJR 43 by Huffman, a constitutional amendment that would bar the Legislature from spending state funds to pay obligations of local retirement systems. As matters stand, the Legislature can only make such a decision through the legislative process, and that would already be a difficult task to carry out.
6) HB 21 by Rep. Dan Huberty, R-Houston, an intricate bill that aims to repair Texas's broken public school finance system, has won the support of our Brothers and Sisters at Texas AFT in large part because it would add, on average, about $200 per student.
The Texas Supreme Court upheld the current school finance system as constitutional while criticizing almost every important aspect of the law. The House has made improving the way schools get their funding a top priority. Unfortunately, the Senate's top school priority appears to be a voucher system that would steer taxpayer dollars from neighborhood public schools to unaccountable private schools.
From Texas AFT:
The leading House school-finance bill is HB 21 by Rep. Dan Huberty (R-Houston), who as chair of the House Public Education Committee held the second of two hearings on the bill Tuesday. Texas AFT took the opportunity to declare support for the bill, which would add $1.6 billion in aid to school districts to the House budget plan. The bill is still something of a work in progress--a first step toward a comprehensive remodeling of the state school-finance system. Texas AFT will be working with Rep. Huberty and House allies to improve it. But it is good enough already to warrant support, in contrast to the miserly approach taken by the Texas Senate thus far, which would result in a decline in per-pupil funding. Under HB 21, school districts would see an average increase of more than $200 per pupil under state funding formulas. That's money districts urgently need to support educational programs and recruit and keep the quality teachers and staff our students deserve.
7) The AFL-CIO Executive Council, meeting in San Antonio, approved this statement on immigration reform:
America's unions have been at the forefront of the fight to create an economy that works for all working people. We have a unique expertise on how our immigration system affects the health of our economy and our labor market, and we know that enacting meaningful immigration reform is critical to our long-term efforts to lift labor standards and empower workers. Reasserting the AFL-CIO's commitment to this work is essential not only to the future of the labor movement, but also to meet our duty to represent and support the millions of immigrant workers who are current, dues-paying members of our unions, and those who risk deportation in order to stand up for a union. Working to ensure a just immigration system is core union business.
Fundamentally, the immigration work and policies of the federation remain the same, despite the outcome of these contentious elections. If anything, our efforts to organize and represent all workers, and to advance immigration policies that help to raise wages and standards, take on greater urgency as immigrants and refugees are being criminalized and terrorized in our workplaces and communities. Our unions bear witness to the culture of fear that has been created in jobsites across all sectors of the economy. This fear makes it less likely for immigrant workers to report violations of wage and hour or health and safety laws, which erodes conditions for us all. The result will be to embolden employers to exploit workers, regardless of status, and retaliate against any form of collective action at the worksite.
Pitting worker against worker is an age-old tactic of the boss to distract us from the real issues, divide us, and keep us poor-and we will not fall for it. Immigrants are not the source of the problems with our economy; they are a critical source of power to fight back against policies that put profits over people. The only way to stop the race to the bottom in wages and standards is for working people of all races, religions and immigration status to stand together and demand that corporate power be put in check. This will be done not by deporting immigrants and scapegoating them for the precarious labor market, but by ensuring all working people have rights on the job and are able to exercise them without fear of retaliation. Immigrants and refugees are a large and vital part of our workforce and our labor movement, and we will continue to stand in solidarity with all working people.
Statement online here: http://www.aflcio.org/About/Exec-Council/EC-Statements/Immigration-Policy-Is-Economic-Policy