The Dallas Hospitality Employment Lawyer Blog

In an unpublished order last week, a panel of the Second Circuit affirmed a decision by the National Labor Relations Board (NLRB) finding that an employer violated the National Labor Relations Act (NLRA) when it discharged two employees for responding, one with a comment and one with a "Like," to a former employee's negative Facebook post about the employer's tax withholding practices.  One of the current employees referred to the employer as an "asshole" and the other posted a Facebook "Like."   See Three D, LLC d/b/a Triple Play Sports Bar and Grille v. National Labor Relations Board , Nos. 1403284; 14-3814(XAP), (2d Cir. Oct. 21, 2015) (unpublished).   Finding that the non-unionized employees were engaging in concerted activity, the panel rejected the employer's argument that the postings were not protected due to the use of profanity, and noted that such a holding, in light of the nature of social media, "could lead to the undesir...

Today, and hot on the heels of the U.S. Department of Labor's (DOL's) proposed revisions to the overtime regulations, DOL Wage and Hour Administrator Dr. David Weil has issued a new Administrator's Interpretation (No. 2015-1) which concludes that, "most workers are employees under the FLSA's broad definition." Contending, among other things, that the misclassification of employees as independent contractors results in lower revenues for government, the DOL Interpretation strongly embraces the "economic realities" test, which focuses on whether the worker is economically dependent on the employer or in business for himself.   Noting that the multi-factor test should not be applied mechanically or as a checklist, and that no one factor is outcome determinative, the DOL identified and explained the factors as follows: Is the worker an integral part of the employer's business?   A true independent contractor's work is unlikely to be ...

Men or Women?  Damen or Herren?  Chicks or Dudes?  Restroom doors are gender-coded to ensure, usually for comfort and privacy, that men use the men's room and women use the women's room.  It may sound simple, but the issue is not so clear cut for transgender employees in the workplace.  Do men who identify as women use the men's room or women's room?    Occupational Safety and Health Administration (OSHA) Sanitation standard 1910.141 requires employers to provide employees with toilet facilities, and employers may not impose unreasonable restrictions on employee use of those facilities.   Last week, OSHA issued a new "Best Practices" publication titled, "A Guide to Restroom Access for Transgender Workers."  Best Practices: A Guide to Restroom Access for Transgender Workers .  Therein, OSHA recommends the following best practices:    A person who identifies as a man should be permitted to use the men'...

As most employers know, the  U.S. Department of Labor (DOL) is in the process of redefining the exemptions for executive, administrative, professional, outside sales and computer employees, and it is widely-expected that the new regulations will greatly decrease the number of employees eligible for these exemptions.  The DOL expects to publish a notice of proposed rulemaking on these issues in June 2015. But that's not the only subject on the DOL's radar.  In its Spring 2015 regulatory agenda, published on May 21, 2015, the DOL has advised that by the end of August 2015, it plans to issue a Request for Information "on the use of technology, including portable electronic devices, by employees away from the workplace and outside of scheduled work hours."   A copy of the DOL's Spring 2015 agenda is available at:   http://www.reginfo.gov . The most likely purpose of the DOL's attention is to issue new regulations that classify such usage as compensable ti...

Most hospitality employers maintain and enforce a dress code to strengthen their brand images and promote uniformity in the workplace.  But can an employer prohibit an employee from wearing any pins and buttons on a uniform? It is well-settled that an employer violates the National Labor Relations Act when it prohibits employees from wearing union insignia at the workplace, absent special circumstances.  The National Labor Relations  Board (Board) has found special circumstances justifying the proscription of union insignia and apparel when their display may jeopardize employee safety, damage machinery or products, exacerbate employee dissension, or unreasonably interfere with a public image that the employer has established, as part of its business plan, through appearance rules for its employees. What does it take to demonstrate "special circumstances" to ban buttons? In a recent decision, the Board took issue with an employer's "Dress Code and Persona...

For the past few years ROC United has published a "Diners Guide to Ethical Eating" that purports to rank restaurants based on various criteria, including hourly wages and the availability of paid leave.  Hospitality employers should know there's an app for that. For 2015, ROC United added new features to its app, available for Android and IPhone, including "raising awareness of racial justice issues" and encouraging users to leave on-line reviews. This is yet another method ROC United is using to influence the hospitality industry.

Last week the Texas House passed House Bill 910 (HB 910) which allows residents with concealed handgun licenses to carry their handguns in public, provided they are holstered.  A similar measure passed the Texas Senate last month, and the two bills must be reconciled before Governor Greg Abbott can weigh in.  Under current Texas law, citizens can open carry long guns but not handguns. In its current form, HB 910 requires amendments to no less than twelve statutes, including the Texas Alcoholic Beverage Code, Code of Criminal Procedure, Education Code, Labor Code, Penal Code, Election Code, Family Code, Government Code, Health and Safety Code, Local Government Code, Occupations Code, and Parks and Wildlife Code.   HB 910 legalizes the open carry of handguns (meaning in holsters) for those who, among other things: (i) are legal residents of the State of Texas for the 6-month period preceding the date of an application for an open-carry license; (ii) are at least 21...

Disability accommodations can be challenging when the employee provides no suggestions for a workable accommodation, and the employer is either unfamiliar with the condition to be accommodated or with what could constitute an effective accommodation.   Fortunately, there are a number of excellent, cost-free resources for employers to consult: Job Accommodation Network (www.askjan.org):  this website provides free, confidential technical assistance regarding accommodations.  An employer can search for and learn about a particular disability, as well as review suggested accommodations for that disability.   American Foundation for the Blind (www.afb.org); this website includes suggested accommodations for the visually-impaired. National Association of the Deaf (www.nad.org): this website also includes suggested accommodations for the hearing impaired. Wounded Warrior Project (www.woundedwarriorproject.org): this website includes a publication titled, "Se...

On December 8, 2014, the Plano, Texas City Council voted to expand an existing equal rights ordinance to ban discrimination based on sexual orientation and sexual identity in housing, public accommodations, employment, and city contracting. On January 20, 2015, opposition groups and citizens filed enough petitions to send the ordinance back to the Council to either repeal it or send it to a public vote.  At this time, the City Secretary's office is verifying the signatures.  If and when the signatures are verified, the Council will be required to take action. Fort Worth, Austin, San Antonio, El Paso and Houston have already adopted similar ordinances.