Can A British Pub Seek To Hire Brits?

Longbow Pub and Pantry is a British pub in Brooklyn.  But it’s not just a pub, it’s the real deal.  So when the owners needed a bartender they wanted someone as authentic as their establishment – a real Brit.  They placed an ad on Craigslist seeking “energetic and enthusiastic men and women with an appreciation of craft beer, good food, whisky and real football (a k a soccer).”  The ad also stated that “being British definitely works in your favor.”  That's when their problems started.

Is that legal?

The New York City Commission on Human Rights (NYCCHR) reviewed this ad and served Longbow with a legal notice stating that the bar had violated discrimination law “by giving a preference to employment applicants based on their national origin.”

The New York City Administrative Code provides that “it shall be an unlawful discriminatory practice (d) For any employer . . . to print or circulate any advertisement or publication, or to use any form of application for employment which expresses, directly or indirectly, any limitation, specification or discrimination as to age, race, creed, color, national origin, gender, disability, marital status, partnership status, sexual orientation or alienage or citizenship status, or any intent to make any such limitation, specification or discrimination.”

The commission offered to settle the matter for $2,500.

According to a recent New York Times article, Longbow’s owners say that they are “seeking the best applicants to help them cater to their ethnically specific audience.”  The owners are willing to hire qualified people who are not British.

Hooters to the Rescue - Really?

The bar owners have invoked the “Hooters defense. ”  This is a provision of the city law that provides leeway for employment policies that bear “significant relationship to a significant business objective.”  Hooters was able to defend discrimination suits from men claiming that being female is “reasonably necessary” to the performance of Hooters Girl’s job duties.

So far, the NYCCHR maintains that Longbow’s owners posted an ad that is discriminatory because [the ad] clearly expresses a preference for one group of people over another.

So what can employers do? A few tips

• Keep you advertisements based on qualifications.  
• Make sure that the stated qualifications are closely related to the duties, functions and responsibilities to be performed.  
• Stay away from language that favors or appears to favor a prospective applicant based on impermissible criteria such as age, race, creed, color, national origin, gender, disability, marital status, etc.

If you're facing this issue and have any questions, contact me or visit my website.  

IRS Investigating Self-Declared Exempt Organizations

The Internal Revenue Service, announced that they were investigating organizations that self-declare rather than apply to the IRS for recognition of tax-exempt status. To ensure that self-declared tax-exempt organizations are in compliance with IRS rules, the IRS's Exempt Organizations division has sent letters to more than 1,300 self-declaring social welfare organizations, labor unions, and trade associations, and has issued Form 14449, Self-Declarers Questionnaire to be completed and returned to the IRS.

Under the federal tax law, Section 501(c)(4) social welfare organizations; Section 501(c)(5) labor, agricultural, and horticultural groups; and Section 501(c)(6) business leagues, among others, are able to declare themselves tax-exempt without an official determination from the IRS.  Though not a formal audit, the Form 14449 focuses on various aspects of the self-declaring organizations' operations.

About Form 14449 - Areas of Inquiry

• General information about the self-declaring organization and asks the organization to describe the reason(s) for not applying for recognition of exemption.
• Information about certain activities of the self-declaring organization and its related organizations. The organization must list each of its activities and indicate the percentage of revenue, expenses, and time devoted to each. The organization must also report the portion of the income from each activity that is unrelated business income.
• Information about the organization's revenues and expenses.
• Information regarding the compensation of the organization's officers, directors, trustees, and key employees.

The questions are directed at the organization's tax-exempt status.  Form 14449 can also serve as a compliance planning resource for organizations that are not required to complete it.  Click here for a copy of Form 14449.

Contact me or visit my website if you have any questions about this IRS investigation or the Form 14449.

Tracking Overtime Hours? There's an App for That!

If it seems like everybody has an app, you're right. Even the Department of Labor (DOL) has one.  The DOL's free app, DOL-Timesheet, allows employees to record the time they spend working for you.  With tis app, employees can create a timesheet, enter a rate of pay, and record hours worked either contemporaneously with a  after the fact. 

Why This Matters
This DOL tool essentially enables employees to create a shadow set of timekeeping records that could be used to challenge your timekeeping records.  As you know, the Fair Labor Standards Act requires that non-exempt, covered employees be paid an overtime premium for hours worked in excess of 40 hours in a workweek.  As reported in previous blog posts, litigation for unpaid overtime is on the rise.  The Wage and Hour Division of DOL  explains that “instead of relying on their employers’ records, workers now can keep their own records.”  

What You Should Do 
If you want to prevent liability under state and federal wage and hour law, consider taking the following preliminary steps:

• Review your own timekeeping and payroll practices.  
• Ensure that you are properly tracking rest and meal breaks. 
• Have employees acknowledge/certify that their submitted timecards are accurate.
• Conduct periodic reviews of actual practices to determine compliance.

If you have questions or would like to discuss this topic in more detail, contact me or visit my website.