Hospitality Labor and Employment Law Blog

Hospitality Labor and Employment Law Blog

Hospitality Labor and Employment Law Blog Ranks in Top 75

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We were pleased to see that Feedspot has ranked our blog in its “Top 75 Employment Websites and Blogs for Employees and Employers.”

The ranking is based on Google reputation and search ranking; influence and popularity on Facebook, Twitter, and other social media sites; quality and consistency of posts; and Feedspot’s editorial team and expert review.

Thank you for reading our blog!  If you aren’t receiving email notifications when we post, please add your email to the Subscribe form, in the right-hand margin, and watch for the confirmation email. We appreciate your support.

Immigration Update: Travel Ban and Other News for Employers

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The Immigration Law Group at Epstein Becker Green released a Special Immigration Alert that will be of interest to our readers.

Topics include:

  1. President Trump Issues Revised Executive Order on Travel
  2. USCIS Suspends Premium Processing for H-1B Petitions Starting April 3, 2017: All H-1B Petitions, Including H-1B Cap Petitions, Are Affected!
  3. Use of New Form I-9 Is Now Mandatory
  4. IRS Announces That Delinquent Taxpayers Face Revocation/Denial of U.S. Passports
  5. DHS Issues Two New Memos on Enforcement/Border Security

Read the full alert here.

Employers: How to Prepare for “A Day Without” Actions

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A new post on the Management Memo blog will be of interest to many of our readers in the hospitality industry: “‘A Day Without’ Actions – How Can Employers Prepare?” by our colleagues Steven M. Swirsky and Laura C. Monaco of Epstein Becker Green.

Following is an excerpt:

[T]he same groups that organized the January 21, 2017 Women’s March on Washington – an action participated in by millions of individuals across the county – has called for a “Day Without Women” to be held on Wednesday, March 8, 2017. Organizers are encouraging women to participate by taking the day off from paid and unpaid labor, and by wearing red – which the organizers note “may be a great act of defiance for some uniformed workers.”

Employers should be prepared to address any difficult questions that might arise in connection with the upcoming “Day Without Women” strike: Do I have to give my employees time off to participate in Day Without events? Can I still enforce the company dress code – or do I need to permit employees to wear red? Can I discipline an employee who is “no call, no show” to work that day? Am I required to approve requests for the day off by employees who want to participate? As we explained in our prior blog post, guidance from the National Labor Relations Board’s General Counsel suggests that an employer can rely on its “lawful and neutrally-applied work rules” to make decisions about granting requests for time off, enforcing its dress code, and disciplining employees for attendance rule violations. An employer’s response, however, to a given employee’s request for time off or for an exception to the dress code, may vary widely based upon the individual facts and circumstances of each case. …

Read the full post here.

Fifth Circuit: Outsourcing Violated the NLRA – Employment Law This Week

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Featured on Employment Law This Week:  The U.S. Court of Appeals for the Fifth Circuit backs the National Labor Relations Board (NLRB) in an outsourcing dispute.

The NLRB found that a management company violated the National Labor Relations Act when it outsourced the cleaning staff of a hotel that it managed. The NLRB found evidence that the outsourcing decision was related to the worker’s interest in union representation. The NLRB rejected the company’s argument that the decision was due to declining guest satisfaction, concluding that the decision was at least, in part, motivated by anti-union animus. The Fifth Circuit has now rejected an appeal by the company, noting that the court was obligated to pay “special deference” to the NLRB’s credibility findings in cases with conflicting evidence, like this one.

Watch the segment below and see our previous blog post.

Changes to NLRB Election Rules and Employee Handbook and Email Standards Are Likely Under Miscimarra

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Our colleague Steven M. Swirsky, a Member of the Firm at Epstein Becker Green, has a post on the Management Memo blog that will be of interest to many of our readers in the hospitality industry: “NLRB Acting Chair Dissents Point to Likely Changes to Board Election Rules and Employee Handbook and Email Standards.”

Following is an excerpt:

NLRB Acting Chair Philip Miscimarra has given the clearest indication to date of what steps a new Republican majority is likely to take to reverse key elements of the Labor Board’s hallmark actions of the Obama administration once President Trump nominates candidates for the Board’s two open seats and the Senate confirms. In each of these cases, Miscimarra highlighted his earlier opposition to the majority’s changes in long standing precedents and practices. …

Read the full post here.

Fifth Circuit Pays Special Deference to NLRB’s Determination that Hotel Management Company Acted with Anti-Union Animus in Outsourcing Housekeeping Department

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Fifth Circuit Pays Special Deference to NLRB’s Determination that Hotel Management Company Acted With Anti-Union Animus In Outsourcing Housekeeping DepartmentA recent decision of the U.S. Court of Appeals for the Fifth Circuit illustrates the potential pitfalls of outsourcing in the face of a union campaign, as well as the steep hurdle employers face in overturning a decision of the National Labor Relations Board (“NLRB”). In Remington Lodging & Hospitality, LLC v. NLRB, the Fifth Circuit enforced an NLRB order holding that a hotel management company’s decision to outsource the hotel’s housekeeping department was motivated at least in part by anti-union animus and therefore violated Section 8(a)(3) of the National Labor Relations Act (“the Act”).

In late 2011, Remington Lodging & Hospitality, LLC (“the Management Company”) was hired to manage the Hyatt Regency Long Island hotel (“the Hotel”). At the time the Management Company took over management, the Hotel’s housekeeping functions had been outsourced to a staffing company. Consistent with its general preference to directly employ its workers, the Management Company brought the housekeeping function back in-house, and terminated the Hotel’s contract with the staffing company.

Unfortunately, the Hotel’s guest-room component score – its primary indicator of housekeeping effectiveness – continued to decline, and by June of 2012 had hit its lowest level. That month, the Management Company contacted the staffing company about re-outsourcing the Hotel’s housekeeping department, and in August entered into a new agreement with the staffing company to do so.

The NLRB held that this second outsourcing was at least partially motivated by a desire to discourage membership in a union that had begun making efforts to unionize the housekeepers around the time the Management Company elected to re-outsource the department.

On appeal, the Fifth Circuit rejected the Management Company’s argument that to prove a violation of Section 8(a)(3) of the Act, the NLRB must produce evidence that the discrimination “in fact caused or resulted in a discouragement of union membership.” As the NLRB had failed to introduce such evidence, the Management Company argued the NLRB’s order was not supported by substantial evidence.

In rejecting this argument, the Fifth Circuit noted that requiring actual evidence of discouragement was “completely inconsistent” with Fifth Circuit precedent. The court stated flatly the NLRB “need not prove discouragement as a matter of fact.”

While the Management Company asserted that the decline in guest-room component scores explained its decision, the court upheld the NLRB’s resolution of this contested issue of fact. The court noted that the NLRB had relied on evidence of two union-related conversations between housekeepers and Hotel supervisors prior to the outsourcing decision, as well as the statement of another supervisor that the outsourcing decision was “because of the union.” Together these constituted substantial evidence of an unlawful motive. Stating that it must pay “special deference” to the NLRB’s resolution of conflicting evidence, the court upheld the NLRB’s order.

The lesson for employers is a familiar one – be mindful of the potential repercussions of outsourcing decisions, and careful when considering and articulating the underlying motivation. Conflicting evidence is enough to find illegal motivation.

D.C. Mayor Signs Ban on Most Employment Credit Inquiries

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Our colleagues Brian W. Steinbach and Judah L. Rosenblatt, at Epstein Becker Green, have a post on the Heath Employment and Labor blog that will be of interest to many of our readers in the hospitality industry: “Mayor Signs District of Columbia Ban on Most Employment Credit Inquiries.”

Following is an excerpt:

On February 15, 2017, Mayor Muriel Bowser signed the “Fair Credit in Employment Amendment Act of 2016” (“Act”) (D.C. Act A21-0673) previously passed by the D.C. Council. The Act amends the Human Rights Act of 1977 to add “credit information” as a trait protected from discrimination and makes it a discriminatory practice for most employers to directly or indirectly require, request, suggest, or cause an employee (prospective or current) to submit credit information, or use, accept, refer to, or inquire into an employee’s credit information. …

Read the full post here.

Epstein Becker Green to Participate in the 2017 National Club Conference in New York

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Epstein Becker Green is pleased to be participating in the National Club Association’s 2017 National Club Conference at the New York Athletic Club on May 22-24, 2017.

Jeffrey H. Ruzal, Member of the firm and leader of Epstein Becker Green’s Hospitality industry service team is featured in the afternoon General Session on May 22, 2017 and will discuss misclassification of club staff.

Jeff is looking forward to sharing his knowledge in hospitality law and discussing best practices to avoid many of the recurring legal issues plaguing the hospitality industry.

Click here for a conference schedule at-a-glance.

Five Issues Hospitality Employers Should Monitor Under the Trump Administration

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A New Year and a New Administration: Five Employment, Labor & Workforce Management Issues That Employers Should MonitorIn the new issue of Take 5, our colleagues examine five employment, labor, and workforce management issues that will continue to be reviewed and remain top of mind for employers under the Trump administration:

Read the full Take 5 online or download the PDF. Also, keep track of developments with Epstein Becker Green’s new microsite, The New Administration: Insights and Strategies.

Where Federal Expectations Are Low Governor Cuomo Introduces Employee Protective Mandates in New York

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Earlier this week New York Governor Andrew D. Cuomo (D) signed two executive orders and announced a series of legislative proposals specifically aimed at eliminating the wage gap in gender, among other workers and strengthening equal pay protection in New York State. The Governor’s actions are seen by many as an alternative to employer-focused federal policies anticipated once President-elect Donald J. Trump (R) takes office.

Legislative Proposals

According to the Governor’s Press Release, the Governor will seek to amend State law to hold the top 10 members of out-of-state limited liability companies (“LLC”) personally financially liable for unsatisfied judgments for unpaid wages. This law already exists with respect to in-state and out-of-state corporations, as well as in-state LLCs. The Governor is also seeking to empower the Labor Commissioner to pursue judgments against the top 10 owners of any corporations or domestic or foreign LLCs for wage liabilities on behalf of workers with unpaid wage claims.

Executive Orders

On January 9, 2017, Governor Cuomo signed two executive orders. The first, “Ensuring Pay Equity by State Employers,” prohibits state agencies and other state entities from asking job applicants for their wage history or considering previous salaries in hiring decisions until the applicant is extended a conditional offer of employment with compensation.

The second executive order, “Ensuring Pay Equity by State Contractors,” requires all state agencies and authorities to include a provision in all state contracts, agreements and procurements issued on or after June 1, 2017 requiring contractors and subcontractors to agree to include workforce utilization reports, which shall include in addition to the currently required equal employment opportunity data, the job title and salary of employees of contractors or subcontractors performing work on a state contract, or of a contractor or subcontractor’s entire workforce if the contractor or subcontractor cannot identify the individuals working directly on the state contract in question. This information shall be reported to state agencies and authorities on a quarterly basis for all prime contracts valued at more than $25,000, and on a monthly basis for prime construction contracts valued at more than $100,000.

While there will likely be a noticeable shift toward employer-focused regulations and policies under the impending Trump Administration, employers should take heed of certain states, such as New York, that will continue to advance protections for employees where the federal government has not.

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