The Dallas Hospitality Employment Lawyer Blog

Last week, the Equal Employment Opportunity Commission (EEOC) issued its new "Enforcement Guidance on Retaliation and Related Issues," which supersedes its Compliance Manual Section 8: Retaliation , issued in 1998.  New Guidance.   According to the EEOC, the purpose of the new Enforcement Guidance is to set forth the Commission's interpretation of the law of retaliation and related issues, and to advise employers that the EEOC's interpretations may differ from courts' interpretations.    Not surprisingly, the EEOC takes broad views of the definitions of  "participation" and "opposition," "materially adverse actions," and causation, and employers should familiarize themselves with these positions, particularly where they differ from those established by case law.   The EEOC reiterates that employers can minimize retaliation claims by implementing comprehensive written policies, training managers and staff, proactively foll...

During the past few weeks, the National Labor Relations Board (NLRB) issued two significant decisions reversing prior Board law.   In Miller & Anderson, Inc ., Case 05-RC-079249 (July 11, 2016), the NLRB dumped the more than a decade old precedent established by Oakwood Care Center , 343 NLRB 659 (2004), and decided that employer consent is not necessary for bargaining units that combine jointly employed and solely employed employees of a single user employer.   Jointly employed employees are those who, for example, are supplied by a temporary staffing agency to work at an employer’s worksite.   Under Oakwood , employees of the “user” employer and the staffing agency employees who worked together could not be represented for purposes of collective bargaining in a single unit, even if they shared a community of interest with one another, unless they obtained their employers’ consent.   Under Miller , consent by the employers is no longer required, and th...

Following the completion of a pilot program, the City of Austin is ready to implement its Organics Diversion Program for restaurants, the goal of which is to decrease the amount of organic materials sent to the landfills.  Here are the highlights: Beginning on October 1, 2016, restaurants that are 15,000 square feet or larger are required to establish an organics diversion program. By October 1, 2017, restaurants between 5,000 square feet and 14,999 square feet are subject to the requirement. By October 1, 2018, all restaurants will need to establish an organics diversion program. Businesses will be required to submit an online Organics Diversion Plan; on a weekly basis, reduce or divert organic material generated onsite;  post informational signs; educate employees; and strategically place exterior organics collection receptacles.   The City of Austin will enforce the program through the inspection process.

In a recent decision explaining its dissatisfaction with the current distinction between gender non-conformity claims, which are cognizable in the private employment context, and sexual orientation discrimination claims, which federal appellate courts have held are not,   a Seventh Circuit panel affirmed the dismissal of an adjunct professor’s sex discrimination claim based solely on sexual orientation discrimination.   Hively v. Ivy Tech Cmty. Coll ., No. 15-1720 (7th Cir. July 28, 2016). Noting that almost all discrimination on the basis of sexual orientation can be traced back to some form of discrimination on the basis of gender non-conformity, the Court made several, surprisingly candid observations about the current state of the law. First, the existing distinction between gender non-conformity claims and sexual orientation claims has created an “odd state of affairs” in the law in which Title VII protects gay, lesbian, and bisexual people, but usually ...

At the end of July, the United States District Court for the Northern District of Georgia joined a number of other federal courts, including the Fourth Circuit, the Northern District of Illinois, the Southern District of New York, and the District Courts in Maryland and Utah, in holding that the United States Department of Labor’s regulation, which provides that, [t]ips are the property of the employee whether or not the employer has taken the tip credit under section [20]3(m) of the FLSA,” is invalid.   See Malivuk v. Ameripark , LLC , No. 1:15-cv-2570-WSD (N.D. Ga. July 26, 2016). In Malivuk , the plaintiff, a valet, alleged her employer violated the FLSA by collecting tips given to the valets, distributing them in accordance with a formula among various valets working on a particular shift, and using a portion of the tip money to offset other business expenses, including valet employee hourly wages.   Notably, the plaintiff did not allege that she was not paid mi...