Wednesday, October 28, 2015

Firing over Facebook "Likes" Could Violate the NLRA

In an unpublished order last week, a panel of the Second Circuit affirmed a decision by the National Labor Relations Board (NLRB) finding that an employer violated the National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Play Sports Bar and Grille v. National Labor Relations Board, Nos. 1403284; 14-3814(XAP), (2d Cir. Oct. 21, 2015) (unpublished).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 undesirable result of chilling virtually all employee speech online." Important to the Court was the fact that the comments at issue did not mention the employer's products or services, much less disparage them.

The order is currently designated as "unpublished," meaning that it has no precedential effect.  The NLRB has asked the Court to designate the order for publication, which would give it precedential authority.  A decision on publication will be forthcoming.

The currently-unpublished order serves as a warning to employers to exercise caution before making employment decisions related to social media postings.

Wednesday, July 15, 2015

Breaking News---DOL Opines that Most Workers are Employees, not Independent Contractors

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:

  1. Is the worker an integral part of the employer's business?   A true independent contractor's work is unlikely to be integral to an employer's business.
  2. Does the worker's managerial skill affect the worker's opportunity for profit or loss?  The focus on this factor is whether the worker exercises managerial skills and whether those skills affect the worker's opportunity for both profit and loss.
  3. How does the worker's relative investment compare to the employer's investment?  Even a substantial investment by the worker may not indicate independent contractor status, and the worker's investment must be compared to the employer's investment.
  4. Does the work performed require special skill and initiative?  The fact that workers are skilled is not in and of itself indicative of independent contractor status.  
  5. Is the relationship between the worker and the employer permanent or indefinite?  Permanency suggests that the worker is an employee, but the lack of permanency does not automatically suggest an independent contractor relationship.
  6. What is the nature and degree of the employer's control?  The worker must control meaningful aspects of the work performed to indicate he is conducting his own business.  This factor alone should not be overemphasized.
In short, and in light of the potential penalties related to the misclassification of employees as independent contractors, employers should revisit their independent contractor agreements and arrangements periodically to ensure proper classification.

Tuesday, June 9, 2015

Pondering the Potty Question? New OSHA Guidance on Transgenders and Bathroom Usage

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's room, and a person who identifies as a woman should be permitted to use the women's room.
  • Where possible, employers should provide options, including single-occupancy, gender-neutral (unisex) facilities, or multiple-occupant, unisex restrooms with lockable, single-occupant stalls.
  • Employers should not ask transgender employees to provide medical or legal documentation of their gender identity.
  • Transgender employees should not be required to use a segregated facility apart from other employees because of their gender identity or transgender status.
Hospitality employers with multi-state operations should also be mindful that a number of states, including Colorado, Delaware, the District of Columbia, Iowa, Vermont, and Washington have specific laws related to gender identity and bathroom use.

Sunday, May 24, 2015

The U.S. Department of Labor Takes New Interest in Employees' Uses of Mobile Devices

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:

The most likely purpose of the DOL's attention is to issue new regulations that classify such usage as compensable time.  

Employers that provide portable electronic devices to non-exempt employees should stay tuned for more information on the DOL's actions in this area.

Wednesday, May 20, 2015

Employer Dress Code Policies---Beware of Button Bans

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 Personal Hygiene Policy" that prohibited those who had contact with the public from wearing pins, insignias or other message clothing.  Boch Imports, Inc., Case 01-CA-08355 (April 30, 2015).  

The employer, a car dealership, argued that the button ban was necessary to avoid injury to employees and damage to vehicles.  The Board disagreed, and found that as written, the rule applied to employees who had no contact with the public, regardless of whether they had contact with the employer's vehicles. 

Noting that the rule applied to employees who did not typically have contact with vehicles, such as finance and administrative personnel, that the record did not include any evidence supporting actual safety concerns related to pin-wearing, public-facing employees, and that the policy made no mention of safety concerns, the Board found the ban unlawful.  

The takeaways from this decision are to tread cautiously when considering enacting an across-the-board ban on buttons, and consider whether "special circumstances" justify such a ban.


Sunday, April 19, 2015

ROC United Publicizes "Diners Guide to Ethical Eating" App

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.

What Hospitality Employers Need to Know About the Impending Texas Open Carry Law

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 years of age; (iii) have not been convicted of a felony; (iv) are not charged with the commission of a Class A or Class B misdemeanor or equivalent offense; (v) are not fugitives from justice; (vi) are not chemically dependent; (vii) have not been finally determined to be delinquent in the payment of state taxes or child support; and (vii) are not currently restricted under a court protective or restraining order affecting the spousal relationship, other than property.  

For hospitality employers, HB 910 has three significant impacts that will more than likely be included in the new law:

  • First, nothing in the new law will change the existing "Guns in the Parking Lot" law which allows employees with concealed handgun permits to keep their firearms in their locked vehicles in the employer's parking lot.  
  • Second, nothing in the new law will prohibit an employer from prohibiting an employee who holds a license to carry a handgun, or who lawfully possesses a firearm, from possessing the firearm on the employer's premises.  The term "premises" is defined as "a building or portion of a building," but does not include public or private driveways, streets, sidewalks, walkways, parking lots, parking garages, or other parking areas. 
  • Third, the new law amends the Penal Code to make it a violation for a license holder to carry a handgun, whether it is concealed or carried in a shoulder or belt holster, onto the premises of a business that has a permit or license issued under specific chapters of the Alcoholic Beverage Code, if the business derives 51% or more of its income from the sale or service of alcoholic beverages for on-premises consumption.
Employers should have the option to post a specifically-worded notice prohibiting open carry on their premises, and should train their staff regarding methods of handling violators, as well as those who complain about other, open carry patrons.

Sunday, February 15, 2015

Employer Resources for Disability Accommodations

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:
  1. Job Accommodation Network (  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.  
  2. American Foundation for the Blind (; this website includes suggested accommodations for the visually-impaired.
  3. National Association of the Deaf ( this website also includes suggested accommodations for the hearing impaired.
  4. Wounded Warrior Project ( this website includes a publication titled, "Service-Connected Injuries and Reasonable Accommodations."
  5. National Alliance on Mental Illness (  this website includes potential accommodations for those suffering from mental illnesses.  
Many public employers have also published their own guidance on accommodations that can provide employers with additional ideas.  

Saturday, February 14, 2015

Uncertain Future for the City of Plano's Sexual Orientation and Sexual Identity Ordinance

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.