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  • Posts by Diana Shukis
    Firm Co-Chair and Principal

    Diana provides advice, counseling, and represents employers in litigation and administrative actions with a business-minded and practical approach.

    In her advice and counseling practice, Diana focuses on ensuring employers ...

On Tuesday, November 22nd, a United States District judge in Texas issued a preliminary injunction that blocks the U.S. Department of Labor (DOL) from implementing a controversial rule that would have expanded overtime protections from going into effect, at least for now.  The pending regulations were scheduled to go into effect on December 1, 2016 and would have more than doubled the salary level required for employees classified as exempt under the “White Collar” exemptions.  The Department of Labor estimated if the new regulations went in to effect more than 4 million workers would now be eligible for overtime.  The salary level is currently $455 per week or $23,660 per year.  The new regulations would have increased that amount to $913 per week or $47,476 per year.

Dress code concept.In the hospitality industry, dress code policies are very important. Diana Shukis, member of our Labor and Employment Group, brings us the latest US Supreme Court ruling regarding image-based policies. Thank you, Diana! – Greg

On June 1, 2015, the US Supreme Court ruled in favor of the US Equal Employment Opportunity Commission (EEOC), concluding that an employer cannot refuse to hire a qualified job applicant in order to avoid accommodating a religious practice – even if the applicant did not request an accommodation.  An applicant must only show that her need for a religious accommodation was a motivating factor in the potential employer’s decision not to hire.

In EEOC v. Abercrombie & Fitch, Samantha Elauf, a Muslim who wore a headscarf for religious reasons, interviewed for a sales floor position at Abercrombie.  Ms. Elauf wore a headscarf to the interview, but did not discuss her religion or say that she wore the headscarf for religious reasons.  The assistant store manager who interviewed Ms. Elauf did not ask about the headscarf, but later testified that she assumed Ms. Elauf was Muslim.  The assistant store manager gave Ms. Elauf a rating that qualified her to be hired, but was concerned that Ms. Elauf’s headscarf conflicted with Abercrombie’s dress code, which prohibited headwear of any kind.  The assistant store manager checked with the district manager, who directed the assistant store manager not to hire Ms. Elauf because her headscarf would violate Abercrombie’s dress code.

The EEOC sued on Ms. Elauf’s behalf, claiming that Abercrombie’s refusal to hire Ms. Elauf because of her religious practice violated Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits discrimination based on race, color, sex, religion or national origin.  Abercrombie argued that it did not violate Title VII because its dress code banned all headwear, whether religious or not, and because Ms. Elauf had not requested an accommodation due to her religion.

The Supreme Court rejected Abercrombie’s argument that Ms. Elauf had to prove Abercrombie knew she needed a religious accommodation, noting that Title VII does not include a knowledge requirement.  Title VII outright prohibits certain motives, including making employment decisions based on religion, regardless of an employer’s actual knowledge.  The evidence showed that Abercrombie at least suspected Ms. Elauf wore the headscarf because of her religion and it refused to hire her because of it.

Take Aways:

  • Don’t stick your head in the sand. If you suspect that an applicant may need a religious accommodation if hired, you should engage in an interactive process with her.  Typically this would include explaining the relevant policy and asking whether she can comply with it.  If not, ask why.  If it is because of religion, ask whether she would need an accommodation and what that might be.  Then, evaluate whether granting the accommodation would impose an undue hardship.  Remember to use caution in asking the follow up questions.  Focus on the job requirements and whether the applicant can meet them – not on the applicant’s religious beliefs and practices.
  • Train interviewing teams. Be sure that you provide regular training to those who interview in your organization.  They need to understand what they can and cannot ask in the interview process and when they need to call in reinforcements to assist with more challenging issues.  Also make sure that higher level managers have appropriate training, including on when to contact HR before making a decision.  I bet Abercrombie & Fitch wishes its district manager had called HR before giving the “do not hire” instruction as to Ms. Elauf.
  • Review your appearance policy.  Dress codes and appearance policies are very important in the hospitality industry, but this case is a good reminder of some of the dangers lurking in and around them.  The EEOC is very skeptical of image-based policies that seem to exclude people based on how they look and/or what they wear.  Be sure your appearance policy is updated and in-line with what is truly important for your business.

If you have any questions regarding this ruling, please contact me or Diana.

In December 2012, the U.S. Department of Justice (DOJ) settled a case with Lesley University, requiring Lesley University to take significant, comprehensive measures to accommodate the needs of students with serious food allergies.  Details on the settlement can be found here.  DOJ took the position that food allergies may constitute a disability under the ADA, and that the many steps required in the settlement were mandated by the ADA’s requirement that public accommodations make reasonable modifications to their policies, practices, and procedures that are necessary to ensure that individuals with disabilities have access to their goods and services.

Gluten free stampHowever, the ADA does not require a public accommodation to engage in any measures that would “fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations” offered.  Perhaps Lesley University could have relied on that defense if it had litigated, rather than settled with DOJ, but it is impossible to predict what the outcome would have been and no one can blame Lesley University for declining to find out.

The DOJ – Lesley University settlement has had many of us worrying that restaurants are already or will soon be in DOJ’s sights for examination of allergy-free items and allergen-free facilities.  While we are still concerned about the potential impacts of the DOJ - Lesley University settlement, we have not yet seen evidence of increased investigations by the DOJ.  Even more encouraging, a technical assistance document released by the DOJ after the settlement with Lesley University gives some hope that DOJ is taking a reasonable approach that is consistent with the ADA.  The technical assistance document confirms that “a restaurant may have to take some reasonable steps to accommodate individuals with” food allergies, such as “omitting or substituting certain ingredients upon request if the restaurant normally does this for other customers.”  However, DOJ confirmed that the ADA does not require restaurants to change their menus to offer gluten or allergen-free foods.  DOJ also emphasized that Lesley University’s situation was unique because it involved mandatory meal plans.

We will continue to monitor this issue along with other ADA public accommodation issues, but for the moment we wanted to pass along some good news on this issue.

Please email or call me if you have any questions.

In a previous employment law update, Hospitality, Travel & Tourism practice group member, Diana Shukis, summarized the much discussed National Labor Relation Board's (NLRB) new notice posting rule. Diana provides below a brief update on the deadline for complying with the rule and her thoughts on where things go from here.

Recent court decisions have delayed the April 30, 2012 deadline for complying with the NLRB's notice posting rule. Based on the court decisions, employers are not required to post the statement of employee rights at least for now.

As you have likely read in the past months, the National Labor Relations Board (the “Board”) recently adopted a new rule requiring almost all employers, including those with non-unionized workplaces, to post a Notice advising employees of certain rights provided to them under the National Labor Relations Act (the “Act”). There was considerable controversy surrounding the new rule, and several postponements of the deadline for compliance. The deadline was last extended from January 31 to April 30, 2012, and the April 30 deadline seems to be sticking. So, if you have put the requirement out of your mind given the postponements, it is time to remember them. Information to help you comply with the posting requirement, including downloadable versions of the required Notice can be found at the Board’s site. The Notice summarizes employees’ rights to negotiate the terms of their employment, form a union, engage in collective bargaining with their employer, strike and picket. Legal restrictions on certain actions by employers and unions are also listed, along with an explanation of the obligation to bargain in good faith when a union has been selected by employees.

What are the posting requirements?

    • The Notice may be downloaded from the Board’s website, but it must be printed to at least 11 inches x 17 inches in size.
    • The Notice must be posted in conspicuous places where notices to employees are normally posted. If employee rules and policies are customarily posted on a company’s intranet or internet site, the notice must also be posted there in full or by a link to the Board’s website where the full text of the notice is located.
    • Employers must take steps to ensure the notice is not altered, defaced, or covered with other materials.
    • If 20 percent of an employer’s workforce is not proficient in English, and those persons speak the same foreign language, the employer must also post the notice physically (and electronically, if applicable) in that language. The Board has provided downloadable copies of the Notice in several languages at the above-referenced website, with more to come.

This week, Employment Law partner & Hospitality team member, Diana Shukis, breaks down the effects of Seattle’s recently enacted “Sick Leave” requirement. On September 12, 2011 the Seattle City Council approved an ordinance that requires businesses with five or more employees to provide paid leave for employees when they or their family members are ill or a victim of domestic violence. The new leave requirement goes into effect on September 1, 2012. Here are answers to common questions to help guide you as you think ahead toward compliance:

In this week's post, Employment Law guru, Diana Shukis, offers insight into the complex and fascinating conflicts arising from Washington state's Medical Use of Marijuana Act.

I am just back from the 5th Annual HR in Hospitality Conference, held in Washington DC last week. The Conference was an information-packed two and one-half days. There were terrific presentations, interesting panel discussions, great audience questions, and many opportunities to informally connect with others in the hospitality industry who focus on human resource issues. I have already marked my calendar for next year’s Conference to be held February 27-29 in San Francisco. 

In today’s post, HT&T team member Diana Shukis (Employment and Litigation) discusses the appropriate test, as determined by a recent Washington state appellate court decision, to decide whether a worker is an independent contractor or an employee.

In this week’s “late due to Snowmageddon II” post, Diana Shukis, a partner in our Employment law practice group and long-time member of our Hospitality team, discusses the basic elements necessary to minimize your organization’s risk of harassment in the workplace, including a step-by-step approach to avoiding, and what to do in the event it occurs. Of course, the easiest way to ensure you have all the training and assistance you need is to give Diana a call.

Workplace harassment continues to be a serious concern because of its negative business impacts and serious liability risks for employers in all industries, including those in the hospitality community. It is vital for hotel managers and human resources professionals to review their organizations’ policies and practices regarding harassment and make any necessary improvements to avoid negative impacts. Workplace harassment based on race, ethnicity, disability or the perception of disability, sex, sexual orientation (in Washington and some other states), religion or age is prohibited by law.

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Greg Duff
Greg Duff founded and chairs Foster Garvey’s national Hospitality, Travel & Tourism group. His practice largely focuses on operations-oriented matters faced by hospitality industry members, including sales and marketing, distribution and e-commerce, procurement and technology. Greg also serves as counsel and legal advisor to many of the hospitality industry’s associations and trade groups, including AH&LA, HFTP and HSMAI.

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