The Dallas Hospitality Employment Lawyer Blog

Passed in March 2016 and effective April 4, 2016, Austin's new "Fair Chance Hiring" Ordinance implements new rules related to employer inquiries about an applicant's criminal history.   Here's what employers should know about the new law:   Does the law apply to every employer?   No, it applies to an employer (including a labor organization) that employs at least fifteen (15) individuals  whose primary work location is in the City of Austin for each working day in each of twenty (20) or more calendar weeks in the current or preceding year.  The term "employer" excludes the United States; a corporation wholly owned by the United States; a bona fide private membership club exempt from taxation under Section 501(c) of the Internal Revenue Code; the state or a state agency; and a political subdivision of the state.    What does the law prohibit?   Employers cannot: publish or cause to be published information about a job covered b...

Section 203(m) of the Fair Labor Standards Act (FLSA) addresses an employer’s use of the tip credit for tipped employees, and provides that an employer cannot take a tip credit unless the employee has been provided notice of the use of the tip credit, and all tips are retained by the employee, although valid tip pooling arrangements are not prohibited. In its Fact Sheet #15, revised in July 2013, the United States Department of Labor (DOL) reiterates the position in its 2011 regulations that a tip is the sole property of the tipped employee regardless of whether the employer takes the tip credit.   At the time it issued the Fact Sheet, a district court in Oregon had declared invalid the DOL’s 2011 regulation that limited an employer’s use of its employees’ tips when the employer has not taken a tip credit against its minimum wage obligations.   Oregon Restaurant & Lodging v. Solis , 948 F. Supp. 2d 1217 (D. Or. 2013).   As a result of that decision, the DOL deci...

In a new collective and class action lawsuit filed in New York this month, the lead plaintiff, a former assistant store manager and customer service representative for one of the largest Domino’s Pizza franchisees in the city, contends that the franchisee for which he worked and the Domino’s franchisor should be held liable as joint employers for the franchisee’s alleged violations of the Fair Labor Standards Act (FLSA).   Kucher v. Domino’s Pizza, et al ., Civil Case No. 1:16-cv-02492 (S.D.N.Y.). In support of the joint employer argument, plaintiff makes two primary arguments.   First, he contends that the franchisor controls the work performed by franchisee employees in franchisee stores by: (1) performing routine inspections of the franchisee’s locations; (2) setting policies and procedures to be followed by franchisees; (3) controlling advertising; and (4) regulating employee behavior, such as by dictating employee uniforms.   Second, he contends the franchis...

This month the Eighth Circuit Court of Appeals affirmed a lower court's ruling that an employer did not violate the Americans with Disabilities Act, as amended (ADA), when it refused to hire a job candidate for a safety sensitive machinist position because the candidate was obese and had a body mass index (BMI) of greater than 40.   Morriss v. BNSF Railway Company .   The facts BNSF maintains a policy that prohibits the hiring of a new applicant for a safety sensitive position if his BMI exceeds 40 due to the significant health and safety risks associated with that level of obesity.  Morris applied for a machinist position with BNSF.  Because BNSF considered the position to be safety sensitive, it made the offer of employment contingent on a satisfactory medical review.  In response to BNSF's medical questionnaire, Morriss reported that his health was "good" and that he experienced no difficulties or limitations in his daily activities.  BNSF's doc...

In 2012, the Occupational Safety and Health Administration issued its Revised Hazard Communication Standard (HCS) to align with the United Nations' Globally Harmonized System of Classification and Labeling of Chemicals.  The intent of the HCS is to provide a common and understandable approach to classifying chemicals used in the workplace, and communicate the hazardous information on labels and Safety Data Sheets, formerly known as Material Safety Data Sheets (MSDS).  Employer responsibilities have been phased in, with the last deadline approaching on June 1, 2016.   Does my establishment need to comply?   1.     The HCS should apply to most hospitality employers because they typically use various types of hazardous chemicals, including degreasers, soaps, oven cleaners, floor cleaners, sanitizers, and drain openers, in the workplace.   What's new?   1.     Chemical manufacturers an...

In a decision entered last week, the Eighth Circuit Court of Appeals agreed that a Jimmy John's franchisee owner and operator violated the National Labor Relations Act (the "Act") when it, among other things: (1) fired some and disciplined other employees for posting misleading and potentially disparaging posters about the company's sandwiches and sick leave policy; and (2) created a public, anti-union Facebook page used by store employees and managers to post comments about a union and its organizers.  See Miklin Enterprises Inc. v. NLRB , Nos. 14-3099, 14-3211 (8th Cir. March 25, 2016). The background The union lost a representation hearing in 2010, and had filed objections to the conduct of the election and an unfair labor practice charge, both of which were settled in 2011.  Around the time of the settlements, several employees placed posters featuring two identical, side-by-side photos of a sandwich on a community bulletin board in the ...