The Dallas Hospitality Employment Lawyer Blog

Last week an Administrative Law Judge (ALJ) found that an employer's "No Gossip Policy" violates Section 8(a)(1) of the National Labor Relations Act (NLRA).   See Laurus Technical Institute , Case 10-CA-093934, before the National Labor Relations Board, Atlanta Branch Office.   The non-unionized employer's No Gossip Policy provided that, ""Gossip is not tolerated…Employees that participate in or instigate gossip about the company, an employee, or customer will receive disciplinary action."  The Policy defined "gossip," in part, as: 1.  "Talking about a person's personal life when they are not present." 2.  "Talking about a person's professional life without his/her supervisor present." 3.  "Negative, or untrue, or disparaging comments or criticisms of another person or persons." 4.  "Creating, sharing, or repeating information that can injure a person's credibility or reputation." ...

Congress passed the Occupational Safety and Health Act in 1970 with the purpose of requiring employers to provide a safe and healthy work environment.  It also protects an employee from retaliation for reporting an unsafe work environment, which is often referred to as a "whistleblower complaint."  The law covers most private sector employers, and grants the Occupational Safety and Health Administration (OSHA), part of the United States Department of Labor, investigation and enforcement authority. Recently, OSHA provided employees with a new method for lodging whistleblower complaints against employers.  Through a portal on the United States Department of Labor's website, employees can now electronically file whistleblower complaints anonymously, and in any language.  The online form is located at www.whistleblowers.gov. Employers curious about OSHA's whistleblower investigation process should familiarize themselves with OSHA's Whistleblowers Investigat...

In enacting the amendments to the Americans with Disabilities Act, Congress made clear its intent that the question of whether an individual's impairment is a disability under the statute should not demand extensive analysis.  Congress also undeniably broadened the definition and coverage of the term "disability." Many employment practitioners interpreted the amendments to mean that courts would no longer examine whether a plaintiff was actually disabled, and instead, would focus the analysis on whether there was discrimination in the adverse employment action. In a decision issued on November 6, 2013, the Fifth Circuit confirmed that a plaintiff bringing disability discrimination and failure to accommodate claims under the Americans with Disabilities Act, as amended (ADAAA), is still required to prove he or she is disabled to prevail on the claims.   See Neely v. PSEG Texas, Limited Partnership, et al. , No. 12-51074. In Neely , the plaintiff appealed a ju...

Yesterday, in a clear expression of the "Don't Mess with Texas" mentality, the State of Texas filed suit against the Equal Employment Opportunity Commission (EEOC) challenging the EEOC's April 2012  Enforcement Guidance titled, "Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964."   See State of Texas v. EEOC , Case No. 5:13-CV-00255-C, In the United States District Court for the Northern District of Texas, Lubbock Division. According to the Guidance, which reflects the EEOC's interpretation of Title VII, hiring policies or practices that categorically exclude all convicted felons create an unlawful "disparate impact" under Title VII, and employers must conduct "individualized assessments" of convicted felons' job applications.  If an employer refuses to hire a convicted felon, the employer has the burden to prove the felony disqualification is "job re...

A "reasonable accommodation" under the Americans with Disabilities Act, as amended (ADA), should assist an employee with performing the essential functions of the job, right? Not really, according to the Fifth Circuit's recent opinion, Feist v. State of Louisiana , No. 12-31065, issued on September 16, 2013.  In that case, an employee claimed her employer discriminated against her based on a disability by declining to provide a free, on-site parking space to accommodate her osteoarthritis.  The employer's rationale was that the denial of the parking space did not limit the employee's ability to perform the essential functions of the job.  The District Court agreed with the employer, but the Fifth Circuit vacated the decision on this issue and remanded the case. Why is this decision so interesting? Because it appears to contradict older, but not yet superseded, Guidance issued by the Equal Employment Opportunity Commission (EEOC). Specifically, the EE...

Permitting employees to celebrate the spirit of Halloween in the workplace can be a fun morale booster.  A few simple tips for Human Resources can help minimize employment-related risks: 1.  If you allow employees to wear costumes, establish clear and specific policies regarding the dress code.  Examples of unacceptable costumes might include those that: are inappropriately skin-revealing, or include rips or tears that are inappropriately skin revealing;  include special effects,  such as fake blood, oozing fluids, or body parts (think current zombie craze); include props that could be upsetting to patrons or guests, such as fake knives, guns or other weapons;  include strobe-type lighting that could trigger seizures in some people; cover the employee's entire face and mouth (unless there is a legitimate medical or religious exception);  could be construed as derogatory toward any religious or social group (but be mindful of rules prohib...

Thumbprint and retinal scans are no longer the stuff of science fiction thrillers, and a growing number of employers are turning to biometric identification as a way to track employees' time and attendance.   For employers considering implementing this type of technology, tread cautiously.  Last month, the Equal Employment Opportunity Commission (EEOC) filed suit against a company that uses a biometric hand scanner to track its employees' time and attendance.   See   EEOC v. Consol Energy, Inc. and Consolidation Coal Co ., No. 1:13-CV-215, In the United States District Court, for the Northern District of West Virginia. So what's the issue? The answer may surprise you.  The employee on whose behalf the EEOC filed suit, an Evangelical Christian, contends there is a relationship between the hand-scanning technology and the Mark of the Beast (associated with the right hand and the forehead, for those of you who are curious and want to refer to Chapter 13, ...