Not long after lawyers for an R+D Kitchen employee convinced a state district judge to agree that she should be able to wear a face mask to work, her employer’s parent company began to make a case for moving the arguments to federal court.
State district judge Tonya Parker ruled Thursday that Jane Doe, who is represented by Charla Aldous and Brent Walker, should be granted a temporary restraining order that would allow the employee to return to work while wearing a mask as protection against the spread of the novel coronavirus.
As People Newspapers was the first to report Friday night, employees of the Dallas-area restaurants owned by Hillstone Restaurant Group (which include R+D Kitchen, the Honor Bar, and Hillstone in the Park Cities, and Houston’s in Addison) said the company had a policy that banned the use of masks by both front and back-of-the-house employees.
“It is true. We’re not allowing masks,” the R+D Kitchen manager we spoke to Friday night, who identified herself as Emily, said.
When asked if she was worried for her safety, or had heard any waitstaff expressing worry, she said, “We stand behind our decision. Thank you for your curiosity, but we stand behind this, and we’re doing the best we know.”
HRG’s corporate website outlines the safety precautions its Texas locations are using.
“Current orders do not require our staff to wear face masks. If you are concerned about your safety in this respect, we hope you will join us at a later date,” it says.
“It was our hope that with this filing of a TRO, maybe they would wake up and understand that this is not good for anybody. It’s not good for their business. It’s not good for their restaurant employees, it’s not good for their patrons.” – Charla Aldous
Guidelines provided by Gov. Abbott for reopening the Texas economy include instructions for restaurants. That guidance includes language regarding social distancing and the use of personal protective equipment like face masks.
“Have employees maintain at least 6 feet separation from other individuals. If such distancing is not feasible, measures such as face covering, hand hygiene, cough etiquette, cleanliness, and sanitation should be rigorously practiced,” the guide said.
The Centers for Disease Control and Prevention’s recommendations came last month after evidence increasingly showed that the virus could be spread by asymptomatic carriers – in fact, the agency says that as much as 25% of all transmissions may be asymptomatic, meaning they never show symptoms, according to NPR.
Attempts to reach HRG’s corporate office for comment have not proven fruitful, nor has a request for comment from the attorneys of record, R Rogge Dunn and Gregory Clift.
Several employees spoke to People Newspapers about their concern over the policy, saying they were told that they would not get hours unless they agreed to work without a mask.
This assertion was also reiterated in Jane Doe’s application for a TRO.
“Jane Doe asked about personal protection, and the Kitchen Manager informed her that the company was prohibiting employees from wearing masks or face coverings while at work,” the petition reads. “Jane Doe objected, and the Kitchen Manager advised Jane Doe that she would be removed from the schedule and not be allowed to work unless she agreed t0 work without face covering.”
In a phone call today, Walker and Aldous said their client wants to work – and is hoping that her fellow employees can have the chance to do so safely, too.
“Yes. She wants to be able to go to work and go to work safely,” Walker said. “That’s all she wanted when she came to us.”
Aldous said that getting the matter squared away – and quickly – was important to their client, too, since the potential for restaurants to open to 50% occupancy looms.
“I think it’s a matter of high importance. The more the restaurants begin to fill, the greater danger there is transmitting the disease,” she said. “We’re bringing this case on, on behalf of just Jane Doe, but it’s also an effort to protect all restaurant employees in the future.”
“I think it was unfathomable to me that Hillstone would have the policy of you cannot work if you wear a face mask,” Aldous said. “I don’t understand it. So yes, it was our hope that with this filing of a TRO, maybe they would wake up and understand that this is not good for anybody. It’s not good for their business. It’s not good for their restaurant employees, it’s not good for their patrons.
“And if they would do the right thing, I would hope that the right thing would be they comply with the law and make it mandatory that employees wear the vice coverings, but at a very minimum allow them to do so.”
Aldous and Walker argue in the petition that since Abbott, Dallas County Judge Clay Jenkins, and the CDC all recommend the masks – and since Abbott’s executive order opening restaurants itself tasks restaurants with following the minimum recommendations from the CDC, the use of face masks is in fact a law – and that HRG is asking employees to break it.
“Thus, restaurants opening pursuant to Gov. Abbott’s Order are to follow the President’s and CDC recommendations, and as noted at the beginning of this Application, both the CDC recommendations and the President guidelines require that employees wear face coverings. Gov. Abbott goes further and states that Individuals are encouraged to wear appropriate face coverings, but no jurisdiction can impose civil or criminal penalty for failure to wear a face covering,” the petition said.
“While Gov. Abbott indicated that no jurisdiction can impose civil or criminal penalty on an individual for failure to wear face-covering, Gov. Abbott did not contradict Judge Jenkins’ prior order requiring businesses to have their employees wear face coverings.”
Both Walker and Aldous agreed that all the variations in orders and recommendations could cause confusion – but Walker insisted that the language within Abbott’s executive orders makes the law clear – even it also says that individuals cannot be fined or jailed for refusing to wear a mask.
“But that doesn’t excuse a company who is governed by the other parts of this that say you should follow the recommendations of the CDC,” he said. “You need to follow these. You need to make sure your employees are wearing them.”
But does that mean you’ll see University Park or Highland Park code enforcement officials citing the restaurants since three are in the Park Cities? No, because the law doesn’t give them that authority.
“We continue to work with our restaurant operators to educate them on changing regulations and specific capacity limitations,” Steve Mace, University Park director of communications and marketing said. “While restaurants can lose their certificate of occupancy for not complying with capacity requirements, concerning facial coverings, by county order, municipalities have no authority to cite or fine restaurants,”
Jenkins recently amended a previous order Monday, saying that businesses should consider anything listed as a minimum best practice in Abbott’s executive orders should be considered the law in Dallas County – including requiring the use of face masks by restaurant employees.
Doe’s attorneys originally filed to include all Hillstone’s employees in the TRO but realized quickly that doing so would slow the process considerably, and potentially cut off a chance for Parker to issue it all together.
“When you have a temporary restraining order hearing, there’s a bunch of issues you have to cover,” Walker explained, adding that once Hillstone indicated it would be asking for the case to be removed to federal court, the need to move through those issues quickly became an imperative.
“In order to have proceeded far enough along in the hearing to cover all those different topics, they would have run out the clock on us and enabled to remove the case to federal court before the judge could rule,” he said. “So we had to make a call.”
That call was to amend the order to only include Jane Doe.
“We had to make a conscious decision. Do we just go ahead and let the judge rule with respect to our client or do we continue to hearing and run the risks that they get removed to federal court?” Walker said. “Since the judge expressed that she was prepared to rule, we went ahead and said, all right, Judge please go ahead and rule with respect to our client.”
Not long after obtaining the TRO, though, HRG’s attorneys filed to have the case removed to federal court, arguing, in part, that since company headquarters are in Phoenix, Arizona, it is incorporated in Delaware, and Doe is in Texas, the case should be federal.
“Based upon a federal court hearing today, it does appear that Hillstone is trying to get a federal judge to remove this case from state district court,” Aldous said.
However, on Friday, district court judge Barbara Lynn held a conference call with the four lawyers, with Aldous and Walker making their case for the TRO, and Dunne and Clift arguing for the move to federal court. Lynn ordered Dunn and Clift to file a brief by noon Saturday to support their claim, according to court records.
Since our story Sunday, several more reached out to talk, but asked for anonymity, citing concerns about retribution. Two employees indicated that in addition to signing non-disclosure agreements, they also were pressured to sign arbitration agreements on the spot, and were discouraged from seeking an attorney to review the documents first.
Earlier this week, Dallas Mavericks owner Mark Cuban released a report based on the findings of 300 secret shoppers he deployed across the city to test restaurants and retail businesses.
“Overall – 96% of businesses were non-compliant across all mandatory protocols and all locations,” Cuban wrote.