Some Labor and Employment Developments Affecting the Restaurant Industry

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1 Some Labor and Employment Developments Affecting the Restaurant Industry 1. As Wage and Hour Lawsuits Continue to Increase, Restaurant Owners Consider Payment Options Other Than Tipping. Wage and hour lawsuits have increased 432% over the past 20 years. They increased by 10% over the past year, are currently the largest type of workplace class action lawsuit, and are predicted to continue to increase in the coming years. Restaurant employees, either individually or usually collectively, continue to sue their employers for failure to pay minimum wage overtime, call-in pay, spread-of-hours pay, off-the-clock work, requiring tipped employees to do side work, and requiring employees to share tips with supervisors or non-tipped employees, among other claims. In light of the onslaught of these kinds of lawsuits and government audits, some restaurateurs have decided to eliminate tipping, and instead, pay a salary to servers, and give service-included pricing of meals or include a service charge on the bill that goes to all servers. How is your business responding to the increase in these kinds of lawsuits and audits? Additionally, the U.S. Department of Labor (DOL) and the NYSDOL have been zealous in their pursuit of misclassifications of workers as exempt from overtime pay laws when those employees are entitled to overtime, or misclassification of employees as independent contractors. As you may know, these agencies together with ICE-- are conducting audits like never before in their quest for additional revenue, and the restaurant industry is a particular target for them. Do you know for sure whether your sous-chef, your marketing director, your assistant manager are exempt from overtime pay, or are you assuming an exemption because they are salaried? New York employers may be subject to hefty damages, penalties and fines for misclassifying workers and failing to pay unemployment insurance taxes, maintain workers compensation and disability insurance coverage for their employees, and pay overtime pay to employees who should have been properly classified as non-exempt, rather than exempt, employees. Restaurants also must be careful not to take improper deductions from wages like deductions for employee loss or damage of company equipment. Although New York employers may now recover inadvertent overpayment of wages and advances, they must ensure they comply with New York laws and regulations regarding those recoupments before doing so. Employers must also ensure proper payment of wages to nonexempt employees for all hours worked, includes those hours worked remotely by , texting, Smartphone, or other mobile device.

2 2. New Local Laws: NYC Paid Sick Leave Law: Starting April 1, 2014, NYC Employers Must Cover Sick Leave. With the media focused on the Defense Of Marriage Act s (DOMA) repeal and other historic decisions, a local decision in New York City that could have an equally powerful impact on your business was approved with less fanfare. The New York City Council has passed legislation requiring many employers to provide paid sick leave for their New York City employees beginning next Spring. New York City joins other municipalities like San Francisco, California; Washington, D.C.; Seattle, Washington; Jersey City, New Jersey and Portland, Oregon that have passed laws providing paid sick leave to their employees, together with the State of Connecticut. The New York City law passed despite Mayor Bloomberg s veto will be enforced by the NYC Dept. of Consumer Affairs. It provides that: Starting April 1, 2014, employers with 20 or more employees in New York City must provide five (5) paid sick days per calendar year to covered employees so that such individuals can care for themselves or a close family member. Employees accrue 1 hour of paid sick leave for every 30 hours worked. On October 15, 2015, the requirement will expand to include employers with 15 or more employees in New York City. For employers with fewer employees, they must provide covered employees with up to five days of unpaid sick leave per calendar year. The legislation covers both full- and parttime employees who have been with their employer for at least four months and work at least eighty hours per calendar year. Employers violating the law may be fined up to $2,500. The law does offer one source of comfort for New York City employers: Employee complaints will be filed with the Dept. of Consumer Affairs and employees will not be able to sue employers who allegedly violate the law. NYC Council Passes Law Requiring Reasonable Accommodation of Pregnant Employees: On September 24, 2013, in a vote of 47-0, the NYC Council passed the Pregnant Workers Fairness Act. Under the law, which would amend NYC s Human Rights Law, employers with four or more employees must provide a reasonable accommodation for pregnancy, childbirth and related medical conditions, unless the employer affirmatively can demonstrate that such an accommodation will result in an undue hardship or that the person, with reasonable accommodations, cannot perform the essential functions of the job. Examples of reasonable accommodations identified in the Act include bathroom breaks, leave for a period of disability arising from childbirth, breaks to facilitate increased water intake, periodic rest for those who stand for long periods of time, and assistance with manual labor. In view of the City Council s unanimous support, it would likely override any Mayoral veto of the Act. Under the law, employers must provide written notices to employees regarding pregnant workers rights to accommodations and also post the notice conspicuously in the workplace. 2

3 The Mayor has scheduled a hearing on the bill has been scheduled for October 2, The law will take effect 120 days after it is enacted. Under New York City s Human Rights Law, an employee may bring a lawsuit in court or file a complaint with the New York City Commission on Human Rights (NYCCHR). If an employee sues and the employer is found liable for discrimination, the complaining party may obtain reinstatement, backpay, front pay, compensatory and punitive damages, and attorneys fees and costs. If the employee files a complaint with the NYCCHR, it may order similar relief. Additionally, if the NYCCHR determines that an employer engaged in discrimination, it may subject the employer to civil penalties, up to $125,000. If failure to comply was willful, the civil penalty may be as high as $250,000. Finally, if an employer willfully violates an order of the NYC Commission on Human Rights, it may be guilty of a misdemeanor that is punishable by imprisonment for not more than one year, or by a fine of not more than $10,000, or by both. 3. U.S. Begins Crackdown on Hire of Illegal Workers: In a September 13, 2013 article, the Wall Street Journal reported that ICE the federal agency enforcing U.S. immigration laws-- has ramped up its audits of employers who hire undocumented workers, focusing particularly on the restaurant industry. See Even if the audit turns up no undocumented workers, errors on the I-9 form itself can result in staggering fines for employers. Employers can be fined for each error in each part of the form, ranging from $110 to $1,110 a form, depending on the violation. The result: employers may be liable for thousands of dollars in fines where employing multiple workers. 4. Supervisors May Share In Tips, Sometimes. In June 2013, the New York State Court of Appeals (New York s highest court) determined that Starbucks shift supervisors did much of the same work as its baristas in serving customers and were, therefore, entitled to share in the baristas tip pool. By contrast, the court also ruled that Starbucks could deny tips to assistant managers-- full-time, salaried employees-- because they primarily managed the operations even if they also served customers. The Court boiled it down to this: In sum, an employee whose personal service to patrons is a principal or regular part of his or her duties may participate in an employer-mandated tipallocation arrangement under Labor Law 196-d, even if that employee possesses limited supervisory responsibilities. But an employee granted meaningful authority or control over subordinates can no longer be considered similar to waiters and busboys within the meaning of section 196-d and, consequently, is not eligible to participate in the tip pool. 5. Impact of ObamaCare on Restaurants As you likely know, October 1, 2013 is the deadline under the Affordable Care Act (ACA) for employers subject to the Fair Labor Standards Act to provide written notice to all employees (full-time, part-time, seasonal and temporary employees) of healthcare exchanges and federal subsidies to buy private health plans through exchanges. Employers must also provide this notice to employees hired between Oct. 1 and Dec. 31, 2013; and within 14 days of hiring starting in The U.S. DOL has issued model notices (one for employers who already offer health insurance and one for those that do not). For employers who offer health insurance, here is the model notice: For employers who do not 3

4 offer health insurance currently to their employees, here is the model notice: By 2015, covered employers with at least 50 full time employees (including the requirement to convert part-time employees into full time equivalent employees during the preceding calendar year) must offer affordable coverage to employees and their dependent children under age 26. (A full-time employee is one who works 30 hours per week or 130 hours per month. Two 0.5 FTEs equals one full time employee for purposes of the 50 full-time employee test.) Failure to offer affordable coverage to not less than 95 percent of all full-time employees may result in a penalty of up to $2,000 per year per employee, minus the first 30 full-time employees (part-time employees need not be converted to full time employee for purposes of this penalty) if at least one full-time employee is enrolled in a qualified health plan through an Exchange for that month and has received an applicable premium tax credit for that month s coverage. Has your business considered how this will impact your costs? If it will impact your costs, do you plan to increase the prices on your menu to absorb those costs and if not, how are you planning to absorb them? Conclusion Restaurants are facing greater scrutiny of their employment and pay practices by the government and employees attorneys than ever before. This means that compliance with the law is paramount for restaurants wishing to stay afloat. Be proactive in addressing employment law compliance. Doing so will help prevent an employee lawsuit, government audit, and penalties and fines, from taking a big bite out of your restaurant s bottom line. Below are some tips for helping to reduce the risk of workplace-related litigation, audit, and/or criminal prosecution. Best Practice Tips for Restaurant Employers Review your notice and recordkeeping requirements, and labor postings to ensure they are current; For Labor Postings for Restaurants: Check out NYC Checklist for Required Signs for Restaurants & Bars at: Review your pay, tip-sharing/tip-pooling and wage deduction practices to minimize the risk of suit. Review and update (or prepare to update) your sick leave policies to reflect the requirements of New York s Paid Sick Leave law if you are covered by it. Train managers on the laws affecting your workplace, your policies, and how to comply with them, including how to handle a request for a reasonable accommodation for pregnancy. Conduct a compliance self-audit to ensure your restaurant is properly classifying your workers as exempt or non-exempt from overtime pay laws. Review your I-9 forms (Eligibility to work in the U.S.) with business immigration counsel to ensure they are properly completed; 4

5 With respect to ACA, confer with your employee benefits counsel about your legal obligations and analyze the legal and financial impact of it on your business. Lisa M. Brauner, Esq., FisherBroyles, LLP, or

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