Five Key Labor And Employment Issues Hospitality Employers Need To Be Aware Of This Quarter

Safe Harbor Methods for Hospitality Employers to Determine Full-Time Employees Under the Affordable Care Act

Yelp!ing Enforcement Efforts: DOL's App Marries Consumer Ratings and Enforcement History

Don't Ask to Don't Tell? Believe It Or Not, Asking Employee Investigation Witnesses to Keep Quiet Violates Section 7 of the NLRA

Budget for Change: Prepare Your Business for I-9 Changes and Enforcement

Religious Accommodations: Five Practical Pointers Hospitality Industry Employers Should Consider

Hospitality Team Updates

Safe Harbor Methods for Hospitality Employers to Determine Full-Time Employees under the Affordable Care Act

By: Nicole Bogard and David Pilson

Under the Patient Protection and Affordable Care Act ("Health Care Reform" or the "Act"), hospitality employers will need to determine if their variable hour or seasonal employees are considered full-time employees under Act to avoid the taxes imposed for failing to provide the full-time employees with health care coverage. The IRS recently issued guidance (Notice 2012-58) providing a "safe harbor" method for making the determination that employers may, but are not required to use. As the potential tax consequences to employers for failing to offer health coverage to their full-time employees could be significant, many hospitality employers will be considering the use of this safe harbor method.

Background

Beginning in 2014, employers with 50 or more full-time employees (including full-time equivalents) will be subject to a tax if one or more full-time employees enrolls in health insurance through a State Exchange and receives a premium tax credit or cost-sharing reduction (Subsidy) because:

• the employer doesn't offer minimum essential coverage to its full-time employees (No Coverage); or
• the health coverage offered by the employer either does not provide minimum value or is unaffordable to the employee (Improper Coverage).

When such an employer offers No Coverage and at least one employee qualifies for a Subsidy and enrolls in coverage through a State Exchange, the employer would be liable for a tax equal to $2,000 multiplied by the total number of full-time employees (minus 30 full-time employees).

When such an employer offers Improper Coverage and an employee qualifies for a Subsidy and enrolls in coverage through a State Exchange, the employer would be liable for a tax equal to $3,000 multiplied by the number of full-time employees who actually qualify for the Subsidy and who enroll in the State Exchange, or if less, the total number of full-time employees (minus the 30 full-time employees) multiplied by $2,000.

Each hospitality employer with 50 or more full-time employees (including full-time equivalents) will need to offer minimum essential coverage providing minimum value that is affordable to its full-time employees to avoid the taxes payable to the IRS. Consequently, the issue of who is a full-time employee in the hospitality industry is critical to determining an employer's exposure to these taxes.

Definition of Full-Time Employees

Under Health Care Reform and guidance previously issued, a full-time employee means, with respect to any month, a common law employee who completes on average at least 30 hours of service per week (according to guidance, at least 130 hours of service in a calendar month).

• Hourly Employees. Employers would need to calculate the actual hours of service by counting hours worked and hours for which the hourly employee is entitled to payment.
• Non-Hourly Employees. Employers may (i) count actual hours worked by the employee and hours for which the employee is entitled to payment, (ii) credit an employee with eight hours of service for each day an employee works (or is credited for) an hour of service, or (iii) credit an employee with 40 hours of service per week for each week in which the employee works (or is credited for) an hour of service.

Methods for Determining Full-Time Employees

The IRS confirmed the use of the "Look-back/Stability Period Method" that was previously introduced in guidance as a safe harbor alternative for determining whether a current employee is a full-time employee. This guidance also provides a safe harbor method for determining the full-time status of new employees who are variable hour or seasonal workers.

• Current Employees. The Look-back/Stability Period Method permits the employer to determine whether the employee is a full-time employee by looking back at the standard measurement period (not less than 3 months and up to 12 months).

If the employee averaged at least 30 hours per week during the standard measurement period, then the employer would treat the employee as a full-time employee during the subsequent stability period (not less than six months and no shorter than the standard measurement period), regardless of the number of hours the employee works during the stability period. The employer would need to offer health coverage to the full-time employee for the stability period to avoid the penalty.

According to Notice 2012-58, the employer may use an administrative period (up to 90 days) between the standard measurement period and the stability period to determine the employees who will be eligible for health coverage, to notify these employees, and to enroll the employees. The administrative period may not reduce or lengthen the measurement period or the stability period and instead, it overlaps with the previous stability period.

Employers may use measurement and stability periods that differ in length, or in their start and end dates, for the following categories of employees:

• Collectively bargained and non-collectively bargained employees;
• Salaried and hourly employees;
• Employees of different entities; and
• Employees located in different states.

• New Employees Expected to Work Full-Time. For new employees who are reasonably expected to work full-time on their start date, an employer will not be subject to a penalty for failing to offer coverage to the employee during his or her initial three calendar months of employment as long as the employer offers coverage to the employee at or before the conclusion of the initial three calendar months of employment.
• New Employees Who are Variable Hour or Seasonal Workers. For new variable hour and seasonal employees, the employer may use an initial measurement period (not less than 3 months and up to 12 months) to determine whether the new employee is a full-time employee. An employee is a variable hour employee if based on the facts and circumstances at the start date, the employer cannot determine that the employee is reasonably expected to work on average at least 30 hours per week (even if the employee is initially expected to work at least 30 hours per week for a limited period of time such as during a holiday season). An employee is a seasonal worker if the work is of the kind exclusively performed at certain seasons or periods of the year.

If the variable hour or seasonal worker is determined to be a full-time employee during the initial measurement period, then the employee will need to be treated as full-time employee for the stability period.

Like the safe harbor method for current employees, the employer may use an administrative period up to 90 days with the initial measurement period, but the administrative period combined with the measurement period may not extend beyond the last day of the first calendar month starting on or after the one-year anniversary of the employee's start day.

Examples Using the Standard Measurement Period, Stability Period, Administrative Period and Initial Measurement Period

Example 1 - Standard Measurement Period

For current employees (not new employees) who are variable hour and seasonal employees, Employer A uses a 12-month standard measurement period starting October 15 and a 12-month stability period starting January 1. The administrative period is from October 15 through December 31. Employer A only offers health coverage to full-time employees.

• Employer A tests Employee Y for full-time employee status based on Employee Y's hours from October 15, 2013 through October 14, 2014 (the standard measurement period). From October 15, 2014 through December 31, 2014 (the administrative period), Employer A calculates Employee Y's hours of service from October 15, 2013 through October 14, 2014, determines that Employee Y worked an average of 30 hours per week during the standard measurement period, and offers Employee Y enrollment in the health coverage for January 1, 2015 through December 31, 2015 (the stability period).
• Employer A is not subject to a penalty for 2015 with respect to Employee Y.

Example 2 - Initial Measurement Period

For new variable hour employees, Employer A uses a 12-month initial measurement period that begins on the employee's start date and applies an administrative period from the end of the initial measurement period through the end of the first calendar month beginning on or after the end of the initial measurement period.

• Employer A hires Employee Z on May 10, 2014. Employee Z's initial measurement period runs from May 10, 2014 through May 9, 2015. From May 10, 2015 through June 30, 2015 (the administrative period), Employer A calculates Employee Z's hours of service from May 10, 2014 through May 9, 2015, determines that Employee Z worked an average of 30 hours per week during this initial measurement period, and offers Employee Z enrollment in health coverage. Employer A offers coverage to Employee Z for a stability period that runs from July 1, 2015 through June 30, 2016.
• Employer A is not subject to a penalty from Employee Z's start date through June 30, 2016.
• Employer A uses an initial measurement period that does not exceed 12 months, an administrative period of not more than 90 days, and a combined initial measurement period and administrative period that does not last beyond the final day of the first calendar month beginning on or after the one-year anniversary of Employee Z's start date.
• Employer A will need to test Employee Z again based on the period from October 15, 2014 through October 14, 2015, which is Employer A's first standard measurement period that begins after Employee Z's start date. If Employee Z worked an average of 28 hours a week during that period, then Employer A does not need to offer health coverage for the period from July 1, 2016 through December 31, 2016. Employer A, however, will need to continue to offer coverage from January 1, 2016 through June 30, 2016, the end of the initial stability period.

Next Steps

Employers in the hospitality industry will need to decide if they will take advantage of these safe harbor methods and select their measurement periods, stability periods and administrative periods. Coordinating health coverage eligibility and enrollment with these time periods may require changes to the health plans eligibility and enrollment provisions as well as HRIS systems. Hospitality employers may rely upon these safe harbors through January 1, 2015.

Yelp!ing Enforcement Efforts: DOL's App Marries Consumer Ratings and Enforcement History

By: Alex Passantino

Over the past year, hotels and restaurants increasingly have found themselves on the receiving end of a scheduling letter from the U.S. Department of Labor's Wage and Hour Division (WHD). All around the country, WHD is focusing a significant portion of its investigative resources on the restaurant and hotel industries.

Typical issues addressed in these investigations include the proper payment of tipped employees, the exempt status classification of office and management employees, uniform deductions, payment of the proper rate for overtime hours (particularly for tipped employees), whether the required notice has been given to tipped employees, and whether the employer has the required posters. Issues related to timekeeping and recordkeeping are also addressed in these investigations.

In addition to increasing the frequency of investigations, WHD has adopted more aggressive enforcement tactics, such as starting investigations with little or no notice, requiring the payment of liquidated (double) damages to resolve an investigation, or assessing civil money penalties. DOL also employs what senior DOL officials have described in various contexts as "shaming." Shaming includes issuing press releases and making all violations available in a publicly-searchable enforcement database. That database has apparently been linked with Yelp! in an app known as Eat, Sleep, Shop, which allows consumers to search for restaurants, hotels, and retailers in a location, then view both their Yelp rating and their enforcement history.

The app's synchronization of quality ratings and enforcement data puts employers' reputations on the line in a way that simply cannot be duplicated by issuing a press release. It is at the consumer's fingertips at the moment the decision is made as to where someone should eat, sleep, or shop. The placement of an employer's reputation on the line (as well as its pocketbook) in an investigation makes it even more critical that employers review their wage and hour practices before WHD shows up at the door. Employers in the hospitality industry need to ensure compliance to preserve their reputations.

Don't Ask to Don't Tell? Believe It Or Not, Asking Employee Investigation Witnesses to Keep Quiet Violates Section 7 of the NLRA

By: Dave Baffa

The National Labor Relations Board fired another shot across the bow of the employer community, finding unlawful the common (if not universal) practice of instructing -- or even asking -- witnesses in an investigation not to discuss the matter with others until after the investigation is completed. Hospitality employers must take heed of this decision and revise their investigation procedures accordingly.

In Banner Health System, the Board in a two to one decision reversed the well-reasoned decision of the Administrative Law Judge, and held that the employer's standard interview instruction not to discuss the ongoing investigation with coworkers violated employee rights to engage in protected concerted activity under Section 7 of the National Labor Relations Act. The Board held that such an instruction, even if not coupled with an explicit threat of disciplinary consequences, is an unlawful restraint of employees' Section 7 rights. As part of its remedial action, the Board ordered the posting of a notice that would read, in relevant part, that the employer would cease and desist from "[m]aintaining or enforcing the rule that employees may not discuss with each other ongoing investigations of employee misconduct."

The underlying investigation in this case involved an employee's claim that his negative performance evaluation was the result of retaliation by his supervisor over a prior dispute. In the ensuing investigation, the human resources manager investigating the claim utilized an Interview of Complainant form to guide the discussion and to take notes. At the top of the form, in the prefatory remarks, the following instruction appeared:

This is a confidential interview and I will keep our discussion confidential except as required by law, or Banner policy or as necessary to conduct this investigation. I ask you not to discuss this with your coworkers while the investigation is going on, for this reason, when people are talking it is difficult to do a fair investigation and separate facts from rumors.

During the hearing on the underlying charges, Counsel for the Acting General Counsel moved to amend the complaint to allege that the standard interview instructions violated Section 7 of the Act. The Administrative Law Judge permitted the amendment, but ultimately dismissed the allegations.

In issuing its decision to reverse the ALJ, the Board brushed aside the employers' evidence that the instruction was merely a request, not an instruction or direction. The Board also refused to consider the employer's evidence that the instructions are not shown to or provided to interviewees, and ignored the employer's testimony that the request was read aloud only occasionally, in sensitive investigation situations. Finally, the Board refused to credit the employer's evidence that the request was not even read during the interview at issue.

In its decision, the Board explained that a prohibition on employee discussions of ongoing investigations may be justified by showing a legitimate business justification that outweighs employees' Section 7 rights. However, in the context of this case at least, the Board ruled that the "blanket" instruction not to discuss the investigation "viewed in context, had a reasonable tendency to coerce employees, and so constituted an unlawful restraint of Section 7 rights." The Board rejected the employers' rationale of wishing to maintain the integrity of its investigations, a rationale accepted by the ALJ. Instead, the Board urged that to justify such an instruction, an employer must weigh and ultimately justify the instruction with considerations such as:

• whether any given investigation witness needs protection;
• whether evidence is in danger of being destroyed;
• whether testimony is in danger of being fabricated; or
• whether there is a need to prevent a cover-up.

So Now What?

The Board's decision, the second in the past year, is disappointing. As the ALJ acknowledged, interview instructions regarding confidentiality are intended to ensure the integrity of the investigation. Employers investigating claims of misconduct, especially misconduct involving alleged harassment, discrimination, retaliation, or other potentially illegal activity, need to be able to conduct professional, untainted investigations to determine whether a violation occurred and to take prompt, corrective action. An employer's ability to conduct such investigations can be hampered if employees can communicate with each other and intentionally or unintentionally interfere with the recollection of witnesses or, worse yet, threaten employees if they cooperate.

While the Board did not foreclose instructions in all cases, its requirement that employers determine whether its business justifications for the instructions outweigh employee Section 7 rights is an invitation for litigation. But the limited factual circumstances of this case may provide employers some hope of being able to meet that burden.

As a threshold matter, hospitality employers need make no changes in interview instructions directed to managers or statutory supervisors (as defined by Section 211 of the Act), as they do not fall within the protection of Section 7 of the Act. When a non-supervisory employee is interviewed, however, hospitality employers should consider both the nature of the investigation and the identity of the witness, and determine the appropriate amount of emphasis to place upon confidentiality warnings.

The Board unfortunately provides no guidance in its decision about where these lines should be drawn and, as noted above, did not credit the employer's arguments or evidence regarding its reasonable and limited use of requests for confidentiality. Hospitality employers determining how to approach a given situation, however, may wish to consider the following:

• Presumably, the more serious the underlying conduct -- especially allegations of workplace violence or sexual or racial harassment -- the more likely that a confidentiality instruction would pass muster. After all, any workplace policy intended to protect employees from violence, discrimination or harassment necessarily depends on providing assurances that an employee may raise complaints in confidence, and have the comfort of knowing that his or her issue will be investigated and resolved with discretion. The Board's decision, as written, pays no heed to this competing consideration.
• The risk of perceived retaliation by a reporting victim employee should remain of paramount concern to employers. If, for example, an employee interviewee were free to make a remark or comment to an employee victim who reports harassment, such comments can become part of a mosaic of facts that support a claim of retaliation for reporting misconduct.
• The more particularized the instruction -- for example an instruction not to discuss the substance of the claims, or try to influence, tamper with, or otherwise attempt to shape or influence the testimony of any other witness -- the more likely to survive Board scrutiny.
• In a unionized environment, remember employees have Weingarten rights that must be respected, and even where an employee is the complainant or a mere witness with no such rights, it still might be advisable when giving some type of confidentiality instruction to nevertheless permit such employees to consult with their union representative.

In light of the Board's decision and with the above considerations in mind, hospitality employers may wish to modify standard written interview protocols and witness instructions to include more detail regarding when and how a particular instruction should be fit to a particular situation and witness. Standard investigation protocols could be amended, for example, to invite the interviewer to consider such matters as the nature of the investigation, the identity of the interviewee, the likelihood of retaliation, the possible spoliation of evidence, the possible fabrication or alignment of testimony and other considerations, before issuing any directions about confidentiality. Hospitality employers may wish even to provide some of these justifications to witnesses directly, and explain in a particularized way why it is in the personal interest of the interviewee not to talk to others (because, for example, such discussions may require a follow-up interview, or may be perceived as retaliatory or intimidating, etc.). Ultimately, hospitality employers should reconsider their standard investigation procedures and witness instructions in light of the Board's decision, and keep an eye on the development of this issue in future Board cases.

Budget for Change: Prepare Your Business for I-9 Changes and Enforcement

By: Immigration Department

For many companies, it's that time of year again: Time to prepare and submit budgets for 2013. The vast majority of those budgets will include some amount for training and an additional amount for legal fees; very few will specifically request funds to be spent on immigration compliance projects. Such projects can be expensive and are often a hard-sell, as it is difficult to measure the return on the company's investment (which is in the form of improved processes and fine avoidance, usually only felt when the government comes knocking).

Now, though, more than ever before, it is important for employers - particularly hotels, restaurants, and other hospitality employers - to be proactive in preparing for possible immigration-related government investigations. Why?

• U.S. Immigration and Customs Enforcement (ICE) enforcement activity has reached record levels.
• A large percentage of I-9 inspections by ICE result in fines, which can be avoided by employers who prepare in advance. These fines can be crippling, as they reach as high as $1,100 per employee for even seemingly innocent paperwork errors.
• Most employers have only a very basic policy - or no policy at all - relating to immigration or I-9 compliance. And most have no plan in place to handle a government investigation.
• ICE is not alone. The Department of Justice, Securities and Exchange Commission, and a number of states also police immigration issues. All have increased their enforcement efforts in this area.
• The "raid" may be back. Employers, particularly in the restaurant industry, have begun to report raid-like enforcement initiatives similar to those that more-or-less disappeared with the Bush administration.
• Significant changes to the I-9 form are forthcoming; the form will soon become 2 pages long, and the format and instructions will undergo a massive overhaul. Because employers will need to provide training to prepare for the I-9 changes, they have a good opportunity to provide general I-9 training and to introduce new and improved policies and protocols.
• Employers in the hospitality, retail, food service, manufacturing, and construction industries often face the highest risk in an ICE inspection; due to the historical makeup of their workforces, they may face higher fines and business disruptions when unauthorized workers are discovered during the inspection.

How to Avoid Fines and Liability

It is generally impossible to avoid an ICE inspection, but employers can limit or eliminate risk and liability by proactively preparing for such investigations. To avoid hiring unauthorized workers (and potentially becoming tomorrow's headline), there are numerous steps employers can take.

• providing I-9 training to human resources
• undergoing a voluntary I-9 audit
• using the federal government's E-Verify system
• moving to a compliant electronic I-9 software program¹
• implementing a comprehensive immigration compliance policy, including:
  • an I-9 auditing and compliance policy
  • an immigration sponsorship policy
  • a Social Security no-match policy
  • a policy covering dishonestly and willful misrepresentation²
  • a policy relating to tips (anonymous or otherwise) that an individual may not be authorized to work
  • and an addition to the employee handbook
• putting a government investigation response protocol in place
• ensuring the proper use of, and immigration compliance by, subcontractors

First Steps

Many hospitality employers will not be able to implement all of the suggested steps at once and must choose 2 or 3 items with the highest impact. Training, an I-9 audit, and a government investigation preparedness protocol may be the three options that most effectively limit liability and risk in the event of an ICE inspection.

Training

To avoid charges of discrimination and fines for paperwork violations (which range from $110 to $1,100 per employee) and for the knowing employment of unauthorized workers (which can reach $16,000 per employee), employers should provide I-9 compliance training sessions – either in person or via webcast – to help recruiters, human resources professionals, and managers identify and avoid the many pitfalls involved with completing, maintaining and reverifying the company's I-9 forms. Immigration counsel is often best-suited to provide this training, and the cost is typically minimal when compared to the potential fines the employer could face if it fails to properly complete the I-9 forms.

Auditing

All organizations should also conduct internal I-9 reviews on a regular basis before government immigration agents come knocking. But a mere internal audit, without professional legal guidance, may not yield the best results. Immigration counsel with strong I-9 experience will review your I-9s and evaluate errors across a list of more than 100 potential problems. Counsel will then present a carefully formulated analysis, with tailored recommendations for I-9 corrections, policy and process improvements, and enhanced training.

Preparedness Planning

A strong government investigation response protocol will describe the various types of government investigations that a worksite may face (and the agencies that do the investigating), create a team of individuals who will be responsible for responding to the investigation, define the roles of each member of the response team, and outline the steps to be taken in the event of an investigation. A sample plan, together with more information about comprehensive immigration policies, is available here.

Conclusion

The hospitality industry faces one of the highest risks of an ICE inspection. And the outcome of the November elections is not likely to reduce the risk of an inspection. Budgeting for compliance now can reduce or eliminate liability in the future, keeping costs down, giving employers peace of mind, and reducing the likelihood of a reputation-damaging public investigation.

Religious Accommodations: Five Practical Pointers Hospitality Industry Employers Should Consider

By: Daniel P. Hart

Now that the two major U.S. political parties have officially nominated their respective candidates for President and Vice President, this fall's election marks a notable historic milestone that mostly has gone unnoticed: for the first time in history, three of the four individuals at the top of the two major parties' tickets are members of historically marginalized religious communities. (Republican Presidential nominee Mitt Romney is a member of the Church of Jesus Christ of Latter Day Saints, while current Vice President Joe Biden and Republican challenger Paul Ryan are both members of the Roman Catholic Church.)³ The fact that this historical milestone has garnered relatively little attention perhaps illustrates that America is a much more religiously diverse place today than it was only 52 years ago, when John F. Kennedy became the first non-Protestant elected President of the United States.

In the midst of such unprecedented religious diversity, private plaintiffs and the EEOC are increasingly challenging employers' work rules under Title VII of the Civil Rights Act of 1964, which, among other things, requires employers to reasonably accommodate employees' religious observance or practice unless such accommodation would cause "undue hardship on the conduct of the employer's business."⁴ For example, recently, a former employee at Disneyland filed a lawsuit challenging a uniform requirement that allegedly prevented her from wearing a hijab in accordance with her Muslim faith⁵, while the EEOC sued a Burger King franchisee in Texas over a uniform requirement that allegedly prevented a female employee from wearing a skirt, which the employee alleges is required by her Pentecostal Christian faith.⁶

Given the increase in lawsuits related to religious accommodations, employers in general (and hospitality industry employers in particular) should tread carefully when considering requests by employees for religious accommodations. The following are five practical pointers for employers to consider when dealing with religious accommodation issues:

1. Remember that an observation or practice need not be reasonable, conventional, or even traditionally "religious" to be protected as long as it is "sincerely-held." Because Title VII's definition of religion includes "all aspects of religious observance and practice, as well as belief," the law protects not only employees' religious beliefs, but also practices that employees follow in carrying out their beliefs.⁷ It is in the area of religious practices that employees' religious exercise often conflicts with employer work rules, particularly when employee schedules require employees to work on days reserved for religious observations (such as an employee's Sabbath or periodic religious holidays) or when dress code and grooming requirements require employees to wear clothing forbidden by their religion (or, more commonly, prevent employees from wearing clothing mandated by their religion).

Intuitively, it will not come as a surprise to most employers that they should not (and, in fact, must not) make decisions about religious accommodations based on how reasonable an employee's religious requirement appears to them. After all, what may seem bizarre or even farfetched to one person may represent the core of another person's religious convictions. What is perhaps more surprising, though, is that a religious practice or observance can be protected by Title VII even if it is not shared by members of the employee's same religious group and even if it is not "religious" in the conventional sense of the word.

Courts have struggled over the years with where to draw the line between mere "personal preferences" (which are not protected by Title VII) and religious practices (which are). But the EEOC has taken the position that "religious practices" include "moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views."⁸ In addition, the EEOC has taken the position that such beliefs do not have to derive from an organization or faith community but can be unique to the individual: "The fact that no religious group espouses such beliefs or the fact that the religious group to which the individual professes to belong may not accept such belief will not determine whether the belief is a religious belief of the employee or prospective employee."⁹

Given Title VII's broad definition of the term "religious," in most situations it's prudent for employers to presume that an employee's professed belief or practice is a "religious" belief or practice covered by Title VII - at least if the employee can articulate some basis for the belief that is even remotely "religious" in the general sense of the word.

2. Where possible, document your interaction with employees regarding your attempts to reasonably accommodate religious practices and observations. Most employers are familiar with the interactive process necessary for considering reasonable accommodations for disabilities under the ADA. The same concept applies to religious accommodations under Title VII.

Although there is no requirement per se that employers document their interaction with employees regarding possible reasonable accommodations, as a practical matter such documentation is necessary if the employee challenges the employer's decision in an EEOC charge or lawsuit. When it becomes clear that there is a conflict between a work rule and an employee's professed religious practice or observance, consider asking the employee to complete a questionnaire about the request for an accommodation. The questionnaire should ask the employee to identify the specific religious belief or practice that needs accommodation, explain how the employer's work rules conflict with the specific religious belief or practice, and offer any suggestions for accommodation that the employee believes will eliminate the conflict. While employers do not have to provide the specific accommodation requested by the employee, soliciting suggestions and other information from the employee gives the employer evidence of its good faith, assists the employer in assessing whether a true conflict even exists, and sometimes may allow the employer to identify a reasonable accommodation that it otherwise would have overlooked.

Documenting the interactive process through an employee questionnaire can have an additional advantage: it can, in some circumstances, expose bogus requests for religious accommodation. Unlike disabilities, alleged religious observations and practices are rarely subject to objective verification, and it is certainly possible for employees to abuse Title VII by citing "religious" reasons in support of a personal desire to be excused from a work rule. For example, one can imagine situations where an employee requests time off from work, ostensibly to observe a religious holiday but in reality because of a personal preference to take time off from work. In some situations, properly-drafted written questionnaires may help separate legitimate requests for religious accommodations from bogus ones, particularly when the employee's responses indicate that he or she has a long pattern of not following the alleged religious observation that he or she cites as the need for an accommodation. (Note, however, that employees' religious practices can evolve or become more observant over time. Thus, the fact that an employee has never previously followed a particular religious observation does not always mean that the employee's need for an accommodation is insincere.)

3. Consider whether work rules in question can be justified by legitimate safety concerns. In the hospitality industry, one of the most common conflicts between religious practices and work rules relates to uniform and grooming requirements. Many faith traditions mandate that adherents wear certain articles of clothing (such as turbans, yarmulkes, or hijabs) that identify them as members of that tradition. Likewise, many faith traditions require adherents to wear their hair in a certain fashion or, if they are male, to wear beards. Because employers typically have policies that require employees to wear uniforms or that impose grooming requirements (such as policies that employees must be clean-shaven), employees frequently argue that such policies conflict with their religious practices.

In numerous cases, courts have considered—with varying results—the extent to which employers must accommodate employees whose religious practices conflict with such work rules. The courts that have addressed this issue have reached different (and sometimes inconsistent) conclusions, usually because of the unique facts present in particular cases. However, in general, courts have held that employers are not required to exempt employees from uniform or grooming requirements if such requirements are based on legitimate safety concerns. (For example, courts have held that employers are not required to provide employees with exemptions from policies that prevent employees from wearing beards or head coverings if allowing employees to wear beards or head coverings would prevent them from wearing respirators, hard hats, or other safety equipment.) Courts are much more likely to rule in favor of employees (and less likely to rule in favor of employers) where the work rule at issue is not justified by a safety consideration but on considerations of "company image." For this reason, when the particular work rule at issue is not justified by a legitimate safety concern, employers should be more wary of denying requests for reasonable accommodation that they might be when a safety rule is at issue.

4. Consider multiple ways to accommodate scheduling conflicts, including transfers, shift swaps, and vacation time. Another common religious accommodation issue in the hospitality industry arises from conflicts between employee schedules and religious observations. Many faith traditions require their adherents to take off work to pray or to attend religious services during certain times of the week, while other faith traditions not only require adherents to attend religious services but also to refrain from work on such days. Because such religious obligations often conflict with the times of the week that employees are scheduled to work, employees frequently request that employers allow them to take off work during times that they otherwise would be required to work.

When an employee requests an accommodation to take time off work for a religious purpose, consider whether the employee can be moved to a different work shift or work schedule or transferred to a different position. Some courts have held that such a transfer is a reasonable accommodation even if the transfer would result in a decrease in salary (but only if no other accommodation is feasible).¹⁰ If there is no alternative shift available, consider whether the employee can swap shifts with another employee. If no other options are available and the conflict is non-recurring, consider whether the employee has any vacation time that he or she can use.

5. Be wary of restrictions on religious expression within the workplace unless such religious expression creates an undue hardship. A somewhat less common but often sensitive accommodation issue arises from conflicts between employer policies and employees' religious expression in the workplace. For many employees of varying faiths, expression of their religious faith in the workplace is an essential aspect of their religious practice. Such religious expression can range from merely using religious terminology (for example, "have a blessed day" or "Praise the Lord") to more overt forms of proselytizing. For good reasons, many employers are concerned that employees' religious expression in the workplace could disrupt or offend co-workers or even (in more extreme cases) that it could result in claims of religious harassment by co-workers who do not share the same religious beliefs.

While employers should be sensitive to such concerns, Title VII does not require employers to erect "religion-free" zones where only secular speech is permitted. In many workplaces, employees' expressions of their political preferences or sports allegiances are as likely to give rise to heated discussions as any religious expression in the workplace. If an employer restricts religious expression more heavily than these other forms of expression, the employer may have difficulty demonstrating that the religious expression at issue creates an undue hardship.

Unfortunately, as with other areas of religious accommodation, the courts that have addressed this issue have reached different (and sometimes inconsistent) conclusions, usually because of the unique facts present in particular cases. In general, however, courts have held that employers must allow employees to express their religious faith in the workplace, so long as such expression does not have an adverse effect upon employee morale or workplace productivity and does not infringe on the rights of other employees. When responding to religious expression in the workplace, employers should follow a common-sense approach to balance the rights of employees to exercise their religion with the rights of other employees to a workplace free from religious discrimination or harassment: while employers should ensure that religious expression in the workplace (particularly by supervisors) does not disrupt the workplace, employers should also avoid across-the-board prohibitions on employee speech in the workforce.

Hospitality Team Updates

On August 23, 2012, Ron Kramer, Bill Dugan, Brian Stolzenbach and Molly Eastman of the Chicago office hosted a breakfast briefing for Chicago area hotels regarding union organizing.

Minh Vu, of the Washington, D.C. office, will explore significant developments under the U.S. Americans with Disabilities Act during the past two years at The 2012 Hotel & Lodging Legal Summit on November 9.

We want to hear from you! Do you want to know more about these or any other topics? Want to see something reported on?

Have an idea for an article or webinar? Looking for a speaker for your group? Please feel free to contact your Seyfarth attorney.

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1. See here for more information about the pros and cons of electronic I-9 systems as well as the elements of a compliant program.
 

 

    

      
2. Employers who already have policies relating to dishonesty and willful misrepresentation may want to revisit such policies in light of the fact that many young immigrants who are eligible for DACA (Deferred Action for Childhood Arrivals) may have worked under fraudulent documents in the past but may soon obtain valid work authorization
3. See A. James Rudin, “Of Protestants, Politicians, and Power,” Washington Post (Aug. 30, 2012).
4. 42 U.S.C. § 2000e(j).
5. Boudlal v. Walt Disney Corp., et al., No. 8:12-cv-01306-DOC-AN (C.D. Cal. ) (filed Aug. 13, 2012).
6. EEOC v. Fries Restaurant Mgmt., LLC, No. 3:12-cv-03169-M (N.D. Tex.) (filed Aug. 22, 2012).
7. 42 U.S.C. § 2000e(j).
8. 29 C.F.R. § 1605.1.
9. Id
10. See, e.g,. Vaughn v. Waffle House, Inc., 263 F. Supp. 2d 1075 (N.D. Tex. 2003) (fact that transfer to new position would result in pay cut did not make employer’s offer of transfer an unreasonable accommodation).