Publications

It’s no secret within the hospitality industry that restaurants and hotels have thin profit margins, averaging only 3-5%. With the two largest expenses being fixed rent and variable labor, it is not uncommon for venues to focus on labor costs. This undoubtedly explains the growing trend to evaluate outsourcing certain positions. Outsourcing aims to eliminate overtime and the cost of employee benefits while responding to business level fluctuations in real-time. But, if the outsource process is mismanaged, it may create more problems than it solves. These are our top 5 prevention tips to avoid problems.

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Even in California, where the courts have resisted sending employee claims to arbitration, the tide is turning in favor of mandatory employment arbitration agreements. The California Court of Appeals for the Second Appellate District reversed the decision of Los Angeles Superior Court judge William Fahey denying the employer’s petition to enforce its arbitration agreement.

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With the popularity of Facebook and the widespread use of social media by employees, it probably comes as no surprise that experts believe a person’s Facebook status update offers interesting (and usually obvious) insight about his or her personality. Some people tend to share photos of their travel adventures or culinary skills while others post primarily about the political issues of the day or their kid’s latest athletic competition. For the reader, status updates can be interesting, fun and educational. They can also be dangerous traps for the unwary when they consist of unrestrained rants targeting an employer. Certainly, “concerted activities” for the purpose of mutual aid or protection are permitted and protected by the National Labor Relations Act; therefore, posts consisting of complaints concerning working conditions or worker’s rights will typically not support termination of the employee. However, before “going off” on an employer on social media, or tolerating the same by your employees, remember that such posts may be viewed as offensive and unprotected, supporting a legal termination.

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Joint employer status has long been a hot topic and is seemingly a moving target depending on which agency or jurisdiction is evaluating the status. In a move to reduce uncertainty over joint employer status, promote greater uniformity among court decisions, reduce litigation, and encourage innovation in the economy, on April 1, 2019, the U.S. Department of Labor (“DOL”) proposed a four-part test to replace existing regulations that determine joint employer status under the Fair Labor Standards Act (“FLSA”). While the proposal was favorably received by managers/employers, it sparked criticism from the plaintiffs’ attorneys, who accused the DOL of ignoring precedent that interpreted joint employment broadly.

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Last month, the New York City Commission on Human Rights released new guidelines (available here) that explicitly protect “the rights of New Yorkers to maintain natural hairstyles that are closely associated with their racial, ethnic, or cultural identities.” Penalties for employers include fines up to $250,000 per infraction with unlimited civil damages.

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Employers in New York City now have additional requirements for their employee lactation rooms and lactation policies.

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The Forced Arbitration Injustice Repeal Act (“FAIR” Act) was introduced in both houses on February 28, 2019. If passed, the FAIR Act would eliminate mandatory arbitration agreements in employment, consumer, antitrust and civil rights claims. The bill would not completely do away with arbitration. Employees and consumers could agree to arbitration after a dispute occurs. The FAIR Act would also prohibit agreements that stop individuals, employees and businesses from joining or filing class actions.

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The New Hampshire Supreme Court, on March 8, in the case of Anderson v. Robitaille and Homewood Suites by Hilton [Case No. 2017-0195]{:target=”blank”} issued a ruling that clarifies the respective rights of hotels and guests when a guest resides for a lengthy period of time in an all-suites, extended-stay hotel.

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More employees will now be considered non-exempt, as the U.S. Department of Labor raised the minimum salary threshold for workers to qualify for the Fair Labor Standards Act’s “white collar” exemption. In replacing an Obama administration rule, the new proposal would raise the salary threshold requirement from $23,660 to $35,308 per year. As a result, more employees will be subject to compensation for any time exceeding 40 hours in the workweek.

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Pay equity has taken center stage among the wide array of workplace issues receiving news coverage and public prominence in recent years. Companies and courts alike are trying to determine how to ensure that men and women are paid fairly in connection with their work and experience. The question of how to address pay equity has created such clamor and divergence that the United States Supreme Court decided to review the Ninth Circuit’s interpretation of the law in Fresno County Superintendent of Schools v. Rizo, Case No. 18-272. However, in a shocking twist, the Supreme Court vacated the underlying case from the Ninth Circuit Court of Appeal on February 25, 2019, in light of the death of Ninth Circuit Justice Stephen Reinhardt.

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