​This one’s short and to the point *pulls out bullhorn*: YOU CANNOT DO INDIRECTLY WHAT YOU CANNOT DO DIRECTLY.  

Here she is, Part 2.  

The Trump administration has made no bones about its crackdown on illegal immigration. Earlier this year, Immigration and Customs Enforcement (ICE) agents swept into ninety-eight 7-Eleven stores across the country and demanded proof of employees’ eligibility to work in the United States. The sweep was part of the administration’s efforts to curb illegal immigration by targeting employers, and the message was clear: "Businesses that hire illegal workers" are a pull factor for illegal immigration, and we are working hard to remove this magnet,” said Thomas D. Homan, Acting Director of ICE. “If you are found to be breaking the law, you will be held accountable.”  ​

Pop quiz, restauranteurs – You hire a new part-time dishwasher. He’s deaf. To help him understand orientation training, he asks you for either a closed-caption video or an American Sign Language Interpreter. Do you have to give him either one? This is the issue The Cheesecake Factory has been litigating for the past two years.  

​Turns out, sexual harassment isn’t the only type of sex-based complaint employers are facing. LGBT-related workplace complaints are on the rise, but unlike with sexual harassment, the law isn’t nearly as clear. In fact, it varies extensively across state and federal courts, leaving many employers at a loss to understand their legal obligations. Let’s take a look at what restaurant owners need to know about sex-based discrimination in the workplace – what conduct is illegal and where.  

​Tipping can be a landmine.  Just ask Mario Batali, Daniel Boulud or Jessica Biel.  They’ve all been sued by their employees for allegedly pocketing tips in what is rapidly becoming one of today’s most heavily litigated areas of law. The law is confusing and, up until a few weeks ago, was silent on a key issue that spurred an interpretation dispute between the Department of Labor (DOL) and federal courts that spanned almost a decade.  But on March 23rd, the cobwebs were officially cleared.  Tucked deep within the new congressional spending bill is a provision that both clarifies and significantly changes how tips can be allocated.  Let’s break down what you need to know to prevent violations and the $1,100 fines they now come with. ​

​Nerd alert:  Let’s talk statistics for a sec.  62% of folks in the hospitality industry say they’ve engaged in some sort of workplace romance.  The industry’s a (pun alert) hotbed for it, consistently topping out among the leading five industries and coming in significantly higher than the national average.  But hospitality carries a more nefarious statistic too.  At 14.23%, more sexual harassment complaints come from the hospitality sector than finance (3.98%), real estate (1.95%), construction (2.52%) and tech (5.73%) combined.  With the #MeToo movement on fire, employers are reevaluating their policies on workplace romance.  There are essentially three ways to tackle it.  I fall in the Goldilocks camp; I think the third one’s just right.    

​This is the truth.  <sighs, settles in>  Litigation is, at best, a crapshoot.

​The #MeToo movement has taken an interesting turn.  When Harvey Weinstein was first accused, it’s hard to remember anyone who came to his defense.  The collective outrage against him was swift and furious, and the public immediately demanded his job.  Weinstein was fired from his own company three days later and has been a pariah ever since.  But when Matt Lauer was accused, the reaction was different.  By the time the story broke, Lauer had already been fired, and many saw him as the victim of a bandwagon smear campaign.  “Allegations ONLY,” one person tweeted.  “I guess guilty until proven innocent is the new norm.” ​

​Truth be told, the restaurant industry was waiting to see who would take the fall.  Bro culture has been an open secret in kitchens for years, the last bastion of bawdy behavior on the job.  But with the deluge of #metoo stories sweeping the nation, it was only a matter of time before women in restaurants spoke up and spoke out.  Employers: learn from the example of John Besh; take control of your corporate culture, or the court will do it for you.

We’re pretty far down the rabbit hole with religious discrimination cases.  Since Title VII was enacted in 1964, courts have been asked to find sincerely held religious beliefs in everything from the KKK, to veganism to a guy that liked to eat Kozy Kitten People cat food.  (Swartzentruber v. Gunite Corp.) (Chenzira v. Cincinnati Children’s Hospital) (Brown v. Pena).  But most recently, the United States District Court for the Eastern District of New York held that a team building tool called “Onionhead” was a religion for purposes of Title VII.  (EEOC v. United Health Programs of America).  Given the ruling, now seems like as good a time as any to brush up on religious discrimination laws in the workplace.

To read the headlines, you’d think Jessica Biel was a monster.  Biel and her business partners are accused of “stealing hundreds of thousands of dollars from employees” at their kid-friendly L.A. restaurant, Au Fudge.  In reality, Biel and company are being sued for conduct that isn’t necessarily illegal.  This lawsuit is an important lesson for employers; not about pay practices, but about perception.

Sorry Taco Bell, I know you’d probably rather sweep this one under the rug.  But what happened in Cleveland is an important lesson on the balance of compliance and good ole common sense.  And by the way, I think you did the right thing.

The times they are a-changin’.  Twenty-nine states, DC, Puerto Rico and Guam now have laws legalizing some form of marijuana, with fourteen more states expected to pass similar laws this year alone.  Meanwhile, back at the ranch, America is in the depths of an escalating public health crisis, with the opioid epidemic now classified as the leading cause of death among Americans under fifty.  National drug use is at an all-time high and employers need to know how to protect themselves.

Let’s set the scene:  You’re interviewing Anne for a sales position and it’s going well.  Anne is the most qualified applicant you’ve met and she seems like a real go-getter.  You anticipate that you will offer her the job. As you’re wrapping up, Anne asks about the required hours that were listed in the job description:  9am – 5pm M-F with occasional need to stay later if necessary.

Every person who has applied for a job in the last ten years has probably heard that they should be careful what they post on social media.  The risks to the applicant are obvious; posting something offensive or illegal could blow your shot at the job.  But what about the risk to the employer?  Contrary to popular belief, employers cannot just pour over an applicant’s social media accounts with impunity.  Employers must be careful that their cybervetting does not give rise to discrimination or invasion of privacy claims. ​

Okay, employers - pop quiz:
 
You own a sports bar and restaurant.  One of your employees is mad when she finds out that she owes additional money in taxes.  She claims you didn’t withhold enough of her earnings.  She posts on Facebook: “Someone should do the owners of (your restaurant) a favor and buy it from them.  They can’t even do the tax paperwork correctly.”  One of your bartenders comes along and comments on the post, saying that she too owes taxes and calls you (the owner) “such an a**hole.”  Then your cook chimes in and “likes” the original comment.   (Triple Play Sports Bar & Grille v. NLRB).
 
Q: Who can you fire and why?

Seven years and $12 million later, Texas Roadhouse has finally cried uncle.  The company made the “business decision” to settle its long-running age discrimination lawsuit after a recent mistrial meant potentially facing years of continued legal bleeding.  The case is the largest age discrimination suit the EEOC has brought to trial in more than thirty years, and an important reminder for employers everywhere that hiring for age can cost them big.  ​