The Dallas Hospitality Employment Lawyer Blog

Earlier this year, and riding what appeared to be a nationwide backlash wave, Austin passed a "ban the box" ordinance requiring qualifying private employers to conduct an individualized assessment of an applicant's criminal background record after a conditional offer of employment has been made.  For more information on Austin's new law, see my April 29, 2016 blog post.   This week, Representative Paul Workman (R-Austin) filed House Bill 577, which, if enacted, will amend Chapter 106 of the Texas Labor Code to prohibit a political subdivision of the state from adopting or enforcing any ordinance or other local regulation that prohibits, limits, or regulates a private employer's ability to request, consider, or take employment action based on the criminal history record information of an applicant or employee.  See the text of the HB 577 here: http://www.legis.state.tx.us/tlodocs/85R/billtext/pdf/HB00577I.pdf#navpanes=0   In its current form, HB 577 would

On November 18, 2016, the Equal Employment Opportunity Commission (EEOC) issued its new, 49-page Enforcement Guidance related to national origin discrimination.   Not surprisingly, its views are broad, and employers should familiarize themselves with its positions, highlighted below, on this topic: Definition :   national origin discrimination means discrimination because an individual (or his or her ancestors) is from a certain place or has the physical, cultural, or linguistic characteristics of a particular national origin group, and includes “perceived as” claims.   An employee’s place of origin, national origin group or ethnicity, as well as his association with someone of a particular national origin, or his citizenship status, may form the basis of a national origin discrimination claim.   While most employers think of national origin in terms of origin outside the U.S., “American” is a national origin subject to protection. Scope of Coverage :   coverage extends to all e

Approximately one hour ago, a federal judge in Texas granted a nationwide, preliminary injunction preventing the majority of the new FLSA regulations from taking effect on December 1, 2016.  The Court found that the state plaintiffs established a prima facie case that the United States Department of Labor's salary level and the automatic updating mechanism are without statutory authority, and that the public interest is best served by the injunction preserving the status quo.

In Dillard v. City of Austin, Texas , No. 15-50779 (5th Cir. Sept. 26, 2016), the Fifth Circuit affirmed summary judgment for the City of Austin on a former employee's claims that the City violated the Americans with Disabilities Act, as amended (ADA), by terminating him for a disability and failing to reasonably accommodate him.  The Court's decision provides employers with useful reminders about the mechanics of the accommodation process.   Following a car wreck, the plaintiff was unable to perform his tasks as a manual laborer and field supervisor for the City's Public Works department.  Even though the plaintiff exhausted all available leave under the Family and Medical Leave Act and the allotted time under the City's Return to Work Program, the City allowed him to remain on leave.  Once he was released to limited duty, the City searched for other positions within the Public Works department to accommodate the restrictions, and offered him a temporary position

Faced with a deteriorating corporate culture, a small wholesale company in New York implemented “Onionhead,” later known as “Harnessing Happiness,” in the work place.   The employer described Onionhead as a “multi-purpose conflict resolution tool” to help employees develop better problem-solving and communication skills.   A number of employees disagreed with the employer’s characterization of Onionhead as an improvement tool, and believed that the management-requested exchanges of “I Love You” to colleagues, along with the chants and prayers, and work place discussions, e-mails, and mandatory meetings referencing God, spirituality, souls, demons, Satan, divine destinies, purity, blessings, and miracles, among other things, smacked of a religion in which they felt they were being forced to participate. The employer allegedly fired several employees who refused to participate in Onionhead, resulting in a lawsuit filed by the Equal Employment Opportunity Commission (EEOC).   S

The issue of whether transgender employees, whether they are employed in the public or private sectors, are protected from discrimination based on sex is playing out in courts across the country.  The battlefront expanded again this week when a transgender employee at a Cincinnati public library sued her employer and its healthcare provider, Anthem Blue Cross and Blue Shield, alleging that the denial of insurance coverage for her sex reassignment surgery is a violation of both Title VII and the Affordable Care Act.  See Dovel v. The Public Library of Cincinnati and Hamilton County and Community Insurance Co ., Case No. 16-cv-00955, filed in the United States District Court for the Southern District of Ohio.  This lawsuit follows on the heels of a similar suit filed in June 2016 by the American Civil Liberties Union against Dignity Health.    In August 2016, the United States Supreme Court granted an emergency order to block a transgender male student in Virginia from using the boy

On Sunday, September 25th, California Governor Jerry Brown approved Senate Bill 1241 as an amendment to the California Labor Code.  The new law makes voidable, upon the request of the employee, any provision of a contract that requires an employee who primarily resides and works in California, as a condition of employment, to agree to a provision that would require the employee to adjudicate outside of California a claim arising in California, or deprive the employee of the substantive protections of California law with respect to a controversy arising in California.  The law specifically requires that if a provision is rendered void, the matter shall be adjudicated in California, and California law shall govern.   For purposes of the new law, the term "adjudication" includes litigation and arbitration, and in addition to injunctive relief and any other available remedies, a court may award reasonable attorneys' fees to an employee who is enforcing his or her rights.

Late yesterday afternoon, twenty-one states, led by State of Nevada, and including Texas, filed a lawsuit in the United States District Court for the Eastern District of Texas, Sherman Division, asking the Court to declare that the new overtime rules and regulations are: (1) substantively unlawful under the Constitution; (2) in excess of statutory jurisdiction, authority, or limitations under the Administrative Procedure Act (APA); (3) taken without observance of procedure required by law under the APA; (4) arbitrary and capricious under the APA; and (5) unlawful as applied to states under the APA. They also seek an injunction preventing the government from implementing, applying, and enforcing the regulations. A copy of the Complaint can be found here:  http://bit.ly/2cWO1C3 Notably, although the lawsuit allegations focus primarily on the adverse impact the new regulations are expected to have on the plaintiffs, they also include a contention that private employers in the plainti

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 the user employer has an o

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 only to the extent

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 minimum wage or

In an opinion issued last week, the National Labor Relations Board once again found unlawful a number of employer handbook policies on the grounds that such policies could have a chilling effect on Section 7 rights.   CY-Fair Volunteer Fire Department and Robert Berleth , Case 16-CA-107721 (NLRB July 15, 2016).   You can find the case at: https://www.nlrb.gov/case/16-CA-107721 . Handbook policies the Board found unlawful in the employer fire department’s handbook included the following: 1.          Policies restricting employees from discussing or disclosing personal information of other employees. •      In the “Overview” of the handbook, the employer advised employees that disclosing or discussing the personal information of other employees is grounds for disciplinary action. •         Under its “Essential Behavioral Expectations” policy, the employer advised employees that they were expected to maintain the “confidentiality of business knowledge and member/employee informa

Last week, Philadelphia's City Council passed a new law taxing sugar-sweetened beverages.  Here are some FAQs:   What is a sugar-sweetened beverage?   Examples include soda, non-100% fruit drinks, sports drinks, flavored water, energy drinks, pre-sweetened coffee or tea, and non-alcoholic beverages intended to be mixed into an alcoholic drink.  The new law contains an ingredient-based definition.   Are there exclusions from the tax?   Yes, exclusions include, among other things, baby formula, any product, more than 50% of which, by volume, is milk, and any syrup or other concentrate that the customer combines with other ingredients to create a beverage.   How much is the tax?   The tax is one and one-half cents per fluid ounce for sugar-sweetened beverages.    How is the tax imposed?   The tax is imposed on each of the following:  (a) the supply of any sugar-sweetened beverage to a dealer; (b) the acquisition of any sugar-sweetened beverage by a dealer; (c) the del

Most hospitality employers that take the tip credit and accept credit card payments for tips for tipped employees offset a particular amount, usually a percentage, to recover direct fees charged by the credit card companies.  These direct fees, referred to as  "credit card issuer fees," include swipe fees, charge backs, void fees, and manual-entry fees.   In a 2006 Wage and Hour Division Opinion Letter, the United States Department of Labor opined that employers are permitted to deduct an average offset for credit card issuer fees as long as "the employer reduces the amount of credit card tips paid to the employee by an amount no greater than the amount charged to the employer by the credit card company."   In a decision issued yesterday, the Fifth Circuit agreed that a restaurant employer violated the Fair Labor Standards Act (FLSA) when it deducted and retained 3.25% of its tipped employees' credit card tips because the deduction exceeded the direct c

In an opinion issued on Friday, the Fifth Circuit agreed with a decision from the United States District Court for the Western District of Texas finding that the National Labor Relations Board's (NLRB's) rules amending the procedures for determining whether a majority of employees wish to be represented by a labor organization for purposes of collective bargaining did not violate the National Labor Relations Act (NLRA) or the Administrative Procedure Act.  A copy of the opinion can be found on the Fifth Circuit's website:  http://www.ca5.uscourts.gov/electronic-case-filing/case-information/current-opinions .   Among other changes, the new rules: (1) allow for employees to take a vote on union representation as soon as eleven days after a petition for representation is filed; (2) defer employer challenges to voter eligibility issues until after an election is held; (3) remove the standard, twenty-five day delay that normally occurs between the time a regional director d

The Equal Employment Opportunity Commission (EEOC) has been busy over the past few weeks.  Here are the highlights of its latest activities: 1.  Issuance of Final Rules on Employer Wellness Programs .  If you offer employees a voluntary wellness program that's part of a group health plan, you'll want to review the final rules just issued, which, among other things, cap incentives an employer can offer to employees who participate. 2.  Publication on " Employer-Provided Leave and the Americans with Disabilities Act ."   In this document, the EEOC provides general information to employers and employees regarding its position on when and how leave must be granted for reasons related to an employee's disability.  It also inclues a discussion related to the interactive process, maximum leave policies, and reassignment. Of interest is the EEOC's discussion related to assessing whether an undue hardship will prevent an employer from granting leave as an accommoda

The battle over whether student privacy rights trump a transgender student's right to use the bathroom that corresponds to the sex with which he or she identifies continues, and two new developments move the issue closer to a possible review by the Supreme Court.   First, at the end of May, and on behalf of the State of Texas, Texas Attorney General Ken Paxton filed a lawsuit against the Obama Administration challenging the Administration's directive to allow transgender students to use the bathroom that matches their gender identity.  Alabama, Arizona, Georgia, Louisiana, Maine, Oklahoma, Tennessee, Utah, West Virginia, and Wisconsin joined in the lawsuit.  The suit is pending in the Northern District of Texas, Wichita Falls Division.  All of the plaintiffs seeks declaratory and injunctive relief.   Second, last week, the Fourth Circuit denied a rehearing request in Grimm v. Gloucester County School Board , No. 4:15-cv54, in the United States District Court, Eastern D

Today the United States Department of Labor issued the long-awaited, updated Final Rule revising the federal regulations under the Fair Labor Standards Act ("FLSA") implementing the exemption from minimum wage and overtime pay for executive, administrative, professional, outside sales, and computer employees.  Here are the highlights from the 508-page release that employers need to know: The salary test for EAP workers (defined as executive, administrative and professional employees under the current FLSA tests) has more than doubled from $455 per week ($23,360 per year) to $913 per week ($47,476 per year).   The DOL did not make any changes to the EAP duties tests. The highly-compensated employee total annual compensation level has increased from $100,000 to $134,004. For the first time, employers will be permitted to count non-discretionary bonuses, incentives, and commissions toward up to 10% of the standard weekly salary test, as long as employers pay those am

The International Franchise Association defines franchising as a method for expanding business and distributing goods through a licensing agreement.    In the franchisor-franchisee relationship, a franchisor typically grants a license to a franchisee to conduct business under the trademark and trade name of the franchisor.   http://www.franchise.org/what-is-a-franchise .   For obvious reasons, the franchisor has a vested interest in ensuring that the franchisee maintains the quality and integrity of the brand, which in turn, generally requires some level of oversight of the franchisee’s operations.   But how much control can a franchisor exercise before it crosses the threshold and becomes a joint employer with its franchisee for purposes of establishing liability? The Texas Labor Code Effective September 1, 2015, and in an apparent response to the federal government’s efforts to find joint employers behind every corner, the Texas Legislature amended seven provisions of the Te

After a nearly eight-year battle with the Equal Employment Opportunity Commission (EEOC) and several intervenors, a Denver airport contractor defeated a lawsuit alleging it failed to accommodate Muslim women who asked to wear long skirts at work based on their religious belief that women should dress modestly.   See EEOC v. Jetstream Ground Services, Inc ., No. 13-cv-02340-CMA-KMT, in the United States District Court for the District of Colorado.   The contractor, Jetstream Ground Services, argued that allowing the women to work in long skirts as aircraft cabin cleaners posed an undue hardship based on the safety risks they faced when accessing aircraft from jetway stairs.   Last fall, the district court refused to grant summary judgment on this issue for Jetstream, and the case proceeded to trial. Last week, a federal jury in Colorado returned a verdict that found the EEOC and the intervenors failed to prove their discrimination claims.   Employers faced with discriminati