Center for Innovative Hospitality Labor and Employment Relations Reports
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The CIHLER From the Center Reports series presents in-depth analyses and conceptual approaches to labor and employment issues that affect the hospitality industry. Papers in this series are contributed by a wide range of industry and academic experts, who share their first hand observations and legal analysis.
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Item Understanding Human Resource Practices and Outcomes in Franchise BusinessesLakhani, Tashlin (2021-11-01)Franchise businesses are an essential and growing part of the U.S. economy, accounting for nearly 800,000 establishments, 9 million jobs, and $800 billion in output annually. The importance of franchising is particularly evident in hospitality. Hotel and restaurant companies often use franchising to expand faster than would be possible through company ownership alone. Today, food and hospitality account for 65% of employment in franchise businesses. However, we know very little about human resource management in franchises. This is noteworthy because a large body of empirical research has shown that investments in human resource (HR) practices such as employee selection, training, compensation, internal promotions, and employee discretion improve organizational performance including outcomes such as employee turnover, sales, and customer satisfaction.Item The Effect of Labor Law Changes under the New Administration: Too Soon to TellSherwyn, David S. (2017-06-07)With a new administration in place, experts in labor law joined union leaders and management to observe the straws in the wind regarding what changes might occur in labor laws and regulations. Changes seem inevitable in the National Labor Relations Board, and existing NLRB rulings may be altered as time goes on. On the other hand, it seems nearly certain that franchisors and firms that contract for employees will continue to considered joint employers. The “fissuring” of the hospitality industry invites such an outcome, even as different firms are responsible for specific aspects of a venture. Union leaders anticipate that they will continue to do their best to organize employees and work with their members, and de-emphasize political activity.Item Arbitration: A Positive Employment Tool and Potential Antidote to Class ActionsGilman, Gregg A.; Sherwyn, David J.D. (2014-03-01)More than two years have elapsed since employers let out a sigh of relief when the Supreme Court overturned the 9th Circuit decision in Wal-Mart v. Dukes and decertified the class of plaintiffs suing Wal-Mart, the nation’s largest employer, for sex discrimination.1 The class consisted of approximately 1.5 million of the retailer’s former and current female employees.2 While the details of the lower and Supreme Court decisions are beyond the scope of this paper, the lesson for many employers was the fear that class actions, regardless of merit, could put an entire company at risk. While the obvious response, “don’t violate the law,” should seemingly resolve that fear, the fact is that many employment lawsuits, such as wage and hour or discrimination cases, are often difficult to defend. This may occur because: (1) the law is unclear; (2) there are shades of gray in employment decisions, (3) it is difficult to ensure compliance in large multistate or multi-national corporations, or (4) sometimes companies face “bad facts” even when they did not violate the law. Although defending the allegations of one employee or even a group is expensive, most employers are able to do this. Defending a class action, however, often requires resources beyond what many employers can marshal. In this paper, we propose a way to avoid such costly litigation: arbitration.Item The United States Supreme Court Rules in Favor of Employees in the Young and Abercrombie Cases: What Do They Really Hold?Sherwyn, David S.; Ritter, David B. (2015-11-01)Two recent decisions by the U.S Supreme Court have been characterized as “losses” for employers, and “wins” for employees who wish to have workplace accommodations due to their particular situations. Those perceptions are demonstrated in the popular press reports regarding the decisions, shown in the sidebar on the next page. While the employee indeed prevailed in both of those Supreme Court holdings, neither one indicates that the sky is falling for employers nor that nirvana has been reached for employees. Instead, the Young and Abercrombie decisions are so narrow that it is nearly impossible to determine what they really stand for. With that in mind, the purpose of this article is to dispel any myths regarding these cases, to set forth a detailed analysis of the Supreme Court’s holdings, and to outline how employers should react, subject to advice of counsel.Item The National Labor Relations Act Is Not Just for Unionized Employers AnymoreKlauser, Adam J.D.; Salvatore, Paul; Sherwyn, David J.D. (2013-11-01)The National Labor Relations Act (NLRA) provides employees with the right to engage in “protected concerted activity,” including the right to discuss wages, hours, and terms and conditions of employment. It is often considered the “union law” in that it provides employees with the right to form a union and it regulates the union–management relationship. Because of this strong association with unions, non-union employers’ human resource directors rarely think of the act when making decisions on whom to hire, fire, promote, demote, or discipline. While it was true that in the past the National Labor Relations Board (NLRB, the agency that enforces the NLRA) rarely involved itself in disputes that did not include union organizing, collective bargaining, or any other union–management dispute, this is no longer case. The NLRB is now enforcing the NLRA’s protection of “concerted activity” to non-union employers, who indeed must understand and comply with the act.Item Using the Ethical Principles of Union Organizing to Avoid Card-Check Neutrality and Corporate CampaignsEigen, Zev J.; Sherwyn, David J.D. (2013-10-01)In the summer of 2013, after protracted negotiations, Hyatt Hotels and unite/here reached a landmark labor agreement. Of note in this agreement is the commitment by both parties to a process that leads to what they term “fair elections” for future labor representation. The concept of what represents a “fair agreement” has been a subject of debate, proposed legislation, and litigation for decades. In this paper, we explore a different concept of fairness. Rather than allow years of discord to limit the parties’ options, the proposal is to have both parties communicate under consistent standards, without intimidation and unrest. Our goal in presenting this proposal is to create an environment where all parties to a union representation decision have the opportunity to be heard fairly and, most critically, the employees are able to choose whether they wish to be represented in a free and fair election. That is, those employee groups who wish to be represented have the opportunity for collective bargaining, while those who do not want to be organized are not forced into representation.