Just in time for Labor Day, the leading workers’ rights agency within the U.S. government has a tip for the waitresses serving up beer and chicken wings at Hooters.
The tip from the National Labor Relations Board (NLRB) is not an extravagant one, nor is it exclusive to the wait staff at Hooters restaurants. Instead, it is a re-affirmation of the labor board’s basic policy that employers cannot use mandatory arbitration agreements to limit the labor rights of employees.
The Labor Day action came in the form of a September 1 ruling on a series of charges by female workers at a restaurant operated by Hoot Winc LLC and Ontario Wings LLC, two companies that control a Hooters franchise at the giant Ontario Mills mall near San Bernadino, California. One of the workers, Alexis Hanson, complained to the NLRB in 2013 that she had been unfairly fired for violating rules laid out in the company’s employee handbook, and that some of those rules infringed on her labor rights. NLRB Administrative Law Judge William Nelson Cates ruled in Hanson’s favor in 2014, and a three-member panel of the labor board affirmed the judge’s ruling in the September 1 decision.
The franchisee “required employees to sign an arbitration agreement as a condition of employment. The arbitration agreement requires that all ‘claims’ between the employee and [Hooters] … shall exclusively be decided by arbitration. … Although the arbitration agreement does not explicitly prohibit employees from filing charges with the Board, we agree … that employees would reasonably read it to do so,” the NLRB decision states.
The case is similar to one reported at In These Times earlier this year, in which the labor board slapped down an Applebee’s franchisee in Rehoboth Beach, Delaware, for enforcing its restrictive arbitration policy. In both cases, the restaurants were not unionized, and workers brought their complaints about their bosses to the NLRB in their capacities as individual workers – and won.
Commenting on the Applebee’s case earlier this year, Catherine Ruckelshaus of the New York-based National Employment Law Center stated that broadly worded arbitration agreements illegally prevented many workers from joining in class action lawsuits under the federal Fair Labor Standards Act, which protects employees from abuses of minimum wage and overtime laws. According to Ruckelshaus, such abuses are endemic in the franchise restaurant sector.
Ruckelshaus noted that the Applebee’s (and Hooters) ruling was based on the NLRB’s 2012 D.R. Horton decision, a controversial case that favored workers over bosses in disputes involving mandatory arbitration. The Horton decision has been challenged by employers in federal courts, she stated, and that particular legal battle is expected to continue for several more years.
The NLRB’s Labor Day ruling applies specifically to the Ontario Mills Hooters. But as a statement of policy it also applies to all Hooters locations across the country, as well as to other employers. The Hooters website lists about 330 locations in the United States, although the site elsewhere states that there are a total of 430, including some restaurants in foreign countries.
The decision, along with other documents in the case, can be viewed at the NLRB web site.
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