As 2017 comes to an end, sexual harassment allegations against celebrity chefs and restauranteurs continue to surface. In the bar and restaurant industry, where alcohol flows like water and employees toil away in close proximity under intense pressure, supervisor and employee misconduct is not entirely surprising.
The news media is covering the consequences of alleged misconduct by celebrity and local chefs, restauranteurs, and TV personalities. They range from Top Chef: Colorado’s decision to edit out New Orleans chef John Besh from an episode of the show, to two major retailers’ pulling of Mario Batali-branded products from their shelves, to a Bay Area bar owner reportedly fleeing the country to avoid charges, as reported by Eater magazine. But, what still needs to be addressed is how to attack the root of the problem. Continue reading New Year’s Resolution for Restaurateurs and Bar Owners→
Just like checking your smoke detector or the air in your car tires, checking in about employment law updates midyear is a great idea. Here’s a quick primer on some of the most significant, recent developments affecting restaurants and bars:
1. California’s Version of the Equal Pay Act. It’s a good time for all employers to conduct an audit to make sure they are not paying workers of one sex more than workers of the opposite sex who are performing substantially similar work, in violation of the California Fair Pay Act. As of January 1, 2017, California employers must also be able to show that any difference in pay between employees performing substantially similar work is not based on race or ethnicity. For example, if your pay scale is based on merit, seniority, a piecemeal rate, or another valid factor such as education or training, pay disparity may be justifiable. But, the best practice is to conduct a full analysis of the reasons for any pay disparity among your employees, and to make sure that prior wage salary history is not the sole reason for any pay disparity.
2. Marijuana. Even though California “legalized” marijuana in the last election, employers need not permit marijuana use or distribution in the workplace. Under current California law, recreational and medicinal marijuana use does not need to be accommodated. (See Ross v. RagingWire Telecommunications, Inc.) When updating your employee handbook, make sure your drug-free workplace policy explicitly lists marijuana as a prohibited substance, particularly as cannabis is still listed as a Schedule I drug under the federal Controlled Substances Act (“CSA”) (21 U.S.C. § 812(c)). Continue reading Midyear Compliance Check-In for Restaurants and Bars in California→
Employers nationwide, including those in the food and beverage industries, have been gearing up to implement the U.S. Department of Labor’s new overtime rule that was scheduled to take effect on December 1. But, shortly before the Thanksgiving holiday, a Texas federal judge decided to block it, potentially affecting more than 4 million workers.
The Final Rule would have more than doubled the minimum standard salary level for overtime-exempt “white collar” employees—individuals employed in an executive, administrative, or professional (including the salaried computer exemption) capacity—to $47,476 annually (or $913 weekly). In other words, workers paid less than $47,476 would have been entitled to minimum wage and overtime pay under the federal Fair Labor Standards Act (FLSA), unless they fell within another exemption.
Since the 2016 election is less than one week away, all employers in California, including restaurants and bars, should have already posted the required notice informing employees of their right to time off to vote, either in the workplace or where it can be seen by employees as they enter or exit the workplace. (Cal. Elec. Code § 14001.)
In California, employees are entitled to two hours of paid time off to vote if they don’t have sufficient time outside of working hours to vote. (Cal. Elec. Code § 14000.) The polls in California are open from 7 AM to 8 PM. Paid time off should be at the beginning or end of the employee’s shift, whichever allows the most free time for voting and the least time off from the regular working shift, unless the employer and employee agree to another arrangement. A maximum of two hours is paid, though employees may take additional unpaid time off if it’s needed to vote. Employees must provide notice two working days prior to the election if, on the third working day before the election, they know or have reason to know they will need leave. (Cal. Elec. Code § 14000(c).) Continue reading Is Your Restaurant or Bar Compliant with California’s Voting Laws?→
After years of legal challenges, shark fin soup is off the menu for good in California.
Shark fin soup is a traditional Chinese dish frequently served as a luxury item at special occasions such as weddings. It’s a controversial menu item because some fishermen harvest the fins by catching sharks, slicing off the fins, then tossing the shark back in the ocean. Continue reading California Shark Fin Soup Ban Upheld→
Last June, the U.S. Department of Labor published proposed changes to federal overtime regulations. We discussed it last year, and Duane Morris analyzed them in detail last July.
On May 18, 2016, the Department of Labor published its Final Rule for purposes of distinguishing between overtime-eligible employees and those “white collar” employees (i.e., executive, administrative, professional, outside sales, and computer employees) who may be exempt from the minimum wage and overtime requirements of the Fair Labor Standards Act (FLSA).
Beginning on April 1, 2016, new regulatory amendments will apply to California restaurants, bars, and other employers of five or more full or part-time employees, since such employers are subject to the Fair Employment and Housing Act (“FEHA,” Cal. Govt. Code § 12900, et seq.). The FEHA prohibits discrimination and harassment on the basis of various protected characteristics, including gender, race, age, religion, and disability. For employees with disabilities, the FEHA requires employers to engage in the interactive process to determine a reasonable accommodation and to accommodate the employee. It also prohibits retaliation against employees who engage in activities that are legally protected.
The U.S. Court of Appeals for the Second Circuit recently decided that a sports bar in Connecticut violated the National Labor Relations Act (NLRA) when it terminated two workers for commenting on and “liking” a Facebook post. Specifically, an employee posted a derogatory “status update” noting that the owners of the bar “can’t even do tax paperwork correctly,” since employees owed more in state income taxes than they expected due to a tax withholding error. The post initiated a series of comments which the boss was called an “asshole.” The National Labor Relations Board (NLRB) found, and the Second Circuit affirmed, that terminating the employees due to their Facebook activity was unlawful. (Three D LLC v. NLRB (2d. Cir. 10/21/15) Case #14-3284, appealed from 2014 NLRB LEXIS 656 (8/22/2014).) Continue reading Firing Staff Who Call the Boss an “A*#hole” or “Like” Such Criticism on Facebook→
We’ve all noticed it: why do many ethnic restaurants seem to have servers and wait staff matching that ethnicity? Why do some customers feel that ethnic food served by staff of a different ethnicity is less “authentic”? Does it bother you when you peek behind the kitchen door at, say, a Chinese restaurant, and see that the people making the food are clearly not Asian?
Although it’s not clear whether customers actually do prefer food served by people of matching ethnicity, it does seem, at least anecdotally, to be a real social phenomenon. But what does the law have to say?