Among “The Top Seven Hiring Challenges Facing Today’s Employers,” the weaponization of courts and government ranks as a top issue, a legal expert told a gathering of human resources professionals this week.
With challenges as varied as the rise of mental health issues and increased litigiousness among employees, one of the main issues facing restaurant operators is the weaponization and politicization of the courts and government, according to Amanda Williams, a labor attorney with the Greenberg Traurig LLP firm and a presenter Tuesday at Self Opportunity’s Meeting of the Minds Conference in Dallas.
“The decisions that we're seeing lately aren't based on the law," Williams told the gathering of more than a hundred human resources professionals. “It's outcome determinative. They pick the outcome: How can we fashion this rule to fit that outcome?”
She cited recent 80/20 tip rules, which recent federal administrations have approached differently. The 80/20 labor rule ended earlier this month after being struck down by the Fifth Circuit Court of Appeals for being “both arbitrary and capricious” and contrary to the Fair Labor Standards Act.
“The Bush administration said one thing. Obama said another, and then that Trump administration said one thing and then you know Biden said something else,” Williams said. “The court said no to everybody. It's a constant pendulum.”
The COVID-19 pandemic, which was declared in March 2020, highlighted the disparity in legal rulings and battles, she added.
Among the six other challenges that restaurant employers face, Williams outlined recent rulings and precedent that have impacted how they approach hiring:
Employment standards change. Rulings such as Groff v. Dejoy in June 2023 produced a higher standard for religious accommodation, Williams said. To accommodate the needs of employees, she said, hiring teams can ask potential employees such questions as “Are you willing to work weekends?” Another case was Muldrow v. The City of St. Louis in April 2024 that regards job classification and impacts precedent in Title VII., she said.
Post-COVID flexibility expectations. COVID-19 has impacted scheduling as well as remote-work considerations. “We're still seeing this with remote-working employees,” Williams said. “It's obviously very complex from an HR perspective… . … You're going to have to follow the laws in the resident state.” Various laws impact what must appear on paychecks and how housing is allotted.
“The takeaway is that if you were hiring employees like managers, vice president trainers, or regional managers -- they're going to have policies in your employee handbook that directly address remote working policies,” Williams said.
Increased litigation. Knowledge of Equal Employment Opportunity Commission rules has been heightened among workers, Williams said. “You’re going to have to deal with making sure your policies and your practices are in line so that you can defend those as much as possible,” she said.
Pay Uncertainties. This includes changes in the 80/20 tip rule, Williams said. “It's very complex but just to give you the background, there are three buckets used mainly in the restaurant industry for tip-credit positions. The first bucket is going to be tip- producing work, the second is tip- supporting work like side work, and non-tip- producing work is the third,” she said.
“It means that there's no longer an obligation under federal law for employers to maintain records of time spent on various categories of tasks within a single occupation,” Williams said.
Risks of misclassification. Another category is the Federal Labor Standards Act thresholds for exempt salaries, Williams added. Correct classification of employes as exempt or non-exempt has become even more crucial, Williams said. “It can't just be a salary test,” she warned. “We see this a lot with assistant managers, especially in the restaurant industry. Do they meet the duty test? Do they supervise employees? Do they have any actual authority?”
She encouraged attendees to consult the Department of Labor’s website for exemption classifications and a checklist or to consult with a legal professional.
Mental health issues. “The rise of mental health issues are a big, big issue currently,” Williams said. The younger generation is especially aware of mental health issues and makes demands of employers to provide accommodations, she said.
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