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Friday, July 1, 2016

Hospitality Industry Employment Hot buttons

 By: Thomas Eden

As Hospitality employers focus on staying competitive in saturated markets, they are increasing being forced to place their focus on 3 hot button employment issues for the remainder of 2016:

First, DOL’s New White-Collar Exemption Rule
On May 18, 2016, the U.S. Department of Labor (“DOL”) announced the publication of a final rule that amends the “white collar” overtime exemptions by making a 100% increase in the salary threshold to $47,476. The final rule is effective December 1, 2016.

Common Sense Counsel:
· identify managers currently treated as exempt who will not meet the new salary threshold;
      · review exempt employees’ primary duties because some job positions in hospitality that have failed the primary duties requirements include entry-level managers, catering managers, executive chefs, and sous chefs;
        · converting employees from exempt to non-exempt implicates a number of other issues, such as estimating how much overtime an individual is expected to work, an employee’s new hourly rate, tracking hours and amending job descriptions to ensure compliance with the overtime laws; and realize there are at least 6 alternative ways to lawfully pay managers that make great business sense.

Second, OSHA’s New Electronic Recordkeeping Rule
On May 12, 2016, the Occupational Safety and Health Administration (“OSHA”) published its electronic recordkeeping final rule which creates numerous new recordkeeping obligations and additional administrative burdens for hospitality employers. OSHA will then attempt to remove identifying information from the electronic records submitted and publish them on a searchable database; many think to shame employers. There are also several new anti-retaliation provisions that specifically address post-accident drug testing restrictions. Effective date: August 10, 2016

Common Sense Counsel:
 · By August, 2016, train employees on the requirements of the final rule and ensure that employees understand that they will not be retaliated against for reporting work-related injuries and illnesses and are, in fact, encouraged to report them;
·       · Retrain the employee(s) responsible for injury and illness recordkeeping on the basics of recordkeeping and provide thorough training on the final rule with an emphasis on protecting personally identifiable information to the maximum extent possible while remaining in compliance with the new regulatory requirements; and 
 · Update your Drug Free Workplace Policy on post-accident testing in line with the guidance so your testing will not be considered retaliatory.

Third, Navigating EEOC Guidance for Transgender Workers’ Restroom Access
The EEOC has offered specific guidance on restroom facility access rights for transgender employees.

Common Sense Counsel:
 · Comply with federal law as interpreted by the EEOC and create policies regarding transgender employees’ use of restroom facilities (including following OSHA’s guidance providing numerous restroom options, such as single-occupancy gender-neutral (unisex) facilities), and the use of multiple-occupant, gender-neutral restroom facilities with lockable single occupant stalls; and
·       · Conduct training for managers so that they are aware that they may not require transgender workers to use a particular restroom.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-246-2901. Blog at
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