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Todd Hanchett

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Drawing on nearly 20 years of experience, Todd Hanchett represents employers in high-stakes litigation and traditional labor law matters. As a seasoned litigator, he regularly represents clients before state and federal courts around the country, as well as in labor arbitrations and before the National Labor Relations Board. In addition to employment matters, Todd specializes in litigating and trying cases involving employee non-competition, non-solicitation, and confidentiality agreements, as well as tortious interference claims. His practice focuses particularly on companies in the medical device, senior housing, health care and hospitality industries.

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In Oregon Rest. & Lodging Ass’n v. Perez, the Ninth Circuit ruled this week that federal law restricts a restaurant employer from maintaining a tip pool that includes “back-of-the-house” employees and requires directly tipped employees to share their tips, regardless of whether a tip credit is taken and employees are paid at least minimum wage.

The FLSA permits an employer to count a tipped employee’s tips toward its hourly minimum wage obligation.  This is known as a “tip credit.”  Section 203(m) of the FLSA requires employers who take a tip credit to give notice to employees and allow employees to retain all of the tips they receive, unless such employees participate in a valid tip pool.  Under section 203(m), a tip pool is valid if it is comprised exclusively of employees who are “customarily and regularly” tipped, commonly referred to as “front-of-the-house” employees.

The employers in Oregon Rest. & Lodging Ass’n, however, did not take a tip credit against their minimum wage obligation.  (Indeed, Oregon does not permit a “tip credit,” and requires that all employees receive the state-mandated minimum wage.)  Rather, the employers in Oregon Rest. & Lodging Ass’n paid their tipped employees at least the federal minimum wage and required their employees to participate in tip pools.  Unlike the tip pools contemplated by section 203(m), however, these tip pools included both front- and back-of-the-house employees.Continue Reading Ninth Circuit Declares Tip Pools Invalid Under FLSA Even Where Employers Pay More Than Minimum Wage

Employers probably are aware of the “quickie” election rules implemented earlier this year by the National Labor Relations Board (“the Board”), but they may not have considered all of the rules’ consequences. With as little as 15 to 20 days to respond to an organizing drive, employers must be prepared to educate employees about the risks and consequences of union representation on very short notice. While many employers have prepared as we described here, some still may not be ready to answer questions from workers and explain the consequences of unionizing the workplace. Responding to workers’ questions about a union without being properly prepared can make a mess of things, even if employers speak the truth.

A recent case from the Sixth Circuit Court of Appeals upheld a Board decision that provides a good reminder that managers must be extremely careful even when speaking the truth to workers during an organizing campaign.

Be Careful What You Say

When a car dealership in Illinois learned that some employees were stirring up interest in unionizing, the plant’s general manager met with workers to discuss unions and answer their questions. The manager answered their questions honestly, but his answers still violated labor law, according to the Board and the Sixth Circuit.Continue Reading What Employers Can and Cannot Say During a Union Organizing Campaign

Cantankerous employees beware! Being a jerk is not a disability and, at least according to the Ninth Circuit in Weaving v. City of Hillsboro, blaming bad behavior on a physical or mental impairment does not guarantee protection under the Americans with Disabilities Act ("ADA").

Matthew Weaving was diagnosed with ADHD as a child, but stopped exhibiting symptoms at the age of 12 and was taken off of his ADHD medication. His interpersonal problems continued through adolescence and into adulthood. Weaving pursued a career as a police officer and eventually joined the Hillsboro (Oregon) Police Department in 2006. His relationship with subordinates and peers was strained. Co-workers complained that he often was demeaning and derogatory. Following a subordinate’s complaint about Weaving in 2009, the Police Department placed him on leave pending investigation.

While on leave, Weaving decided that some of his interpersonal difficulties might have been due to ADHD so he sought a mental health evaluation. The psychologist concluded that Weaving had adult ADHD and sent a letter to the police department explaining his diagnosis. The next day, Weaving sent a letter informing his employer about the diagnosis and requesting “all reasonable accommodations.”

A few weeks later, the police department concluded its investigation, finding that Weaving had created and fostered a “hostile work environment for his subordinates and peers,” noting that they described him as “tyrannical, unapproachable, non-communicative, belittling, demeaning, threatening, intimidating, arrogant and vindictive.” Following a fitness for duty examination in which two doctors found Weaving fit for duty despite his ADHD diagnosis, the police department terminated Weaving’s employment.Continue Reading “Isn’t there supposed to be a good cop?” — 9th Circuit Holds Bilious Conduct Not a Disability Under ADA

“Bankruptcy?” you ask. “Why are employment lawyers talking about bankruptcy?” Well, in fact, there are times when bankruptcy can provide a defense to employment discrimination claims. It involves a principle known as “judicial estoppel,” which precludes a party from taking a position in a case which is contrary to a position they have taken in earlier legal proceedings. 

Although there is no uniform definition of judicial estoppel under federal law, the U.S. Supreme Court outlined three factors that courts may consider in determining whether to apply the doctrine: (1) whether the party took “clearly inconsistent” positions, (2) whether the court accepted the party’s earlier position, and (3) whether the party would obtain an unfair advantage if not estopped. Failure to disclose a pending claim (discrimination or otherwise) in bankruptcy can establish that the party took a “clearly inconsistent” position.  As a penalty, the court can invoke judicial estoppel to dismiss the later case entirely.

Federal courts agree that judicial estoppel should not apply when the failure to reveal the claim was a result of inadvertence or mistake. Courts disagree, however, as to what constitutes ‘‘inadvertence’’ and as to what, if any, showing of bad faith is required. Last week, the Ninth Circuit weighed in and provided its view on the appropriate analysis.Continue Reading (Plaintiff’s) Paradise Found? Ninth Circuit Allows Title VII Claim, Omitted in Bankruptcy Petition, To Proceed

In Christopher v. SmithKline Beecham, a 5-4 decision announced Monday afternoon, the U.S. Supreme Court ruled that pharmaceutical sales representatives are exempt from the overtime requirements of the federal Fair Labor Standards Act ("FLSA") under the outside sales exemption. The Court ruled that the Department of Labor’s interpretation of the exemption, raised for the…

Continuing its campaign to educate employees about their rights, the National Labor Relations Board (NLRB) yesterday launched a public webpage that explains the rights of employees (union or non-union) to engage in concerted activity under the National Labor Relations Act (NLRA). The launch of this webpage follows shortly on the heels of a ruling by a…

Last week, we reported that several senators had introduced new amendments to the Age Discrimination in Employment Act ("ADEA") to make it easier for plaintiffs in age discrimination cases to prove their claims.  U.S. Senators aren’t the only ones busy refining federal age discrimination laws – on March 30, 2012, the Equal Employment Opportunity…