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“Working” Tavern Owner Not Entitled to Share in Tip Pool
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In a recent case of first impression in the Fourth Circuit, the Court ruled that the owner of a restaurant/tavern, who is also a bartender, may not lawfully participate in his employee bartenders tip pool under the Fair Labor Standards Act. In Gionfriddo v. Zink, the court observed that [e]very court that has considered the issue has unequivocally held that the FLSA expressly prohibits employers from participation in employee tip pools.

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Court Enters $1.3 Million Dollar Judgment in Favor of Two Employees for Unpaid Wages
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On February 18, 2011, Judge John McDowell, a Washington County Circuit Court Judge, entered judgment in favor of two clients who were former employees of Defendant IOT Systems. As described in our Complaint (a copy of which can be found here), during the course of our clients' employment, IOT missed its weekly payroll on a number of occasions. Indeed, by the time our clients resigned last year, one client was owed over $250,000 in unpaid wages and the other was owed over $180,000.

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Failure to Register with Selective Service — OPM Rules in Favor of Two Clients
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This week, the Director of OPM issued his determination that several of my clients (one is an employee of the U.S. Department of Defense and the other an applicant with the U.S. Mint), had overcome the presumption that their failure to register with the Selective Service had been knowing and willful.

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Using Employer’s Email to Communicate with Attorney May Lead to Loss of Attorney-Client Privilege
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In an interesting recent case, an employee who had sued her employer claiming discrimination was not entitled to assert the attorney-client privilege with respect to her email communications with her attorney in the litigation because they were sent from her work email account, a California appeals court has ruled.

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Overtime Compensation — Myths and Realities
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If you keep up with legal news, you will almost certainly have noticed the proliferation of litigation concerning entitlement to overtime compensation, including collective actions where large numbers of employees sue their employers for unpaid overtime. Liability for unpaid overtime can be staggering, especially in cases involving collective actions, because employees can potentially reach back three years for unpaid overtime and may be able to recover liquidated (double) damages and attorney's fees.

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Congress Considers Extension of Emergency Unemployment Benefits
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As you may have seen in the news, the United States Congress is currently considering an extension of the Emergency Unemployment Compensation (EUC) Program as part of President Obama's compromise legislation. At this time, the legislation has not been passed and the EUC Program has not been extended.

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Marc J. Smith Appears on “Law School for The Public” on Wage and Hour Segment
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Recently, I was invited to participate as a guest commentator on a segment of “Law School for the Public,” an educational program appearing on cable television in Montgomery County, Maryland. Rick Vernon, a partner at the Bethesda, Maryland firm of Lerch, Early & Brewer, Chtd., also appeared as a guest on the show hosted by his law partner, Lori Cleary.

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Extended Unemployment Benefits Expire
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On November 30, 2010, extended unemployment benefits, which had been expanded by the federal government by a period of 73 weeks (normally individuals can collect a maximum of 26 weeks), expired potentially leaving several million people without a source of income over the holidays. The fate of a further extension has become a political battle between Democrats and Republicans, with the Republicans refusing to consider legislation without a quid pro quo.

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Arbitrator Awards Attorney’s Fees to Client in Severance Dispute Against Local Financial Company
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Early in March 2010, we initiated an arbitration action against a local financial firm that purchases structured settlements and lottery winnings. Our client was employed as an executive with the firm. When filed, the case was premised on the firm's anticipatory breach of a severance agreement with our client. Subsequently, the firm admitted liability and the only issue that remained was their liability for the costs of arbitration and our client's attorney's fees.

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Court Orders Facebook to Produce “Private” Information
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In an interesting recent case, Romano v. Steelcase, Inc., an employee alleged she had suffered a workplace injury that caused significant physical harm, including an injury to her neck and back and “pain and progressive deterioration with consequential loss of enjoyment of life.” As part of its defense, the employer sought to obtain copies of its employee's Facebook and MySpace profiles—both the portions that were publicly available and those that the employee had marked as private using the sites' privacy settings.

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