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?→
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→
As of last week, California law now requires mandatory, paid sick leave for most employees – including part-time, temporary and seasonal employees. This means restaurants in the Golden State now must provide paid sick leave, whether they have in the past or not. Employees are now guaranteed up to 24 hours (three days) of annual sick leave – there is no exception for small employers. Some of the key details of California’s new law – Healthy Workplace Healthy Family Act of 2014 (AB 1522) – are as follows:
To be eligible, employees must have worked in California for 30 days and for their current employer for 90 days.
Sick leave must accrue at no less than one hour for every 30 hours worked but employers may provide eligible workers 24 hours up front.
Employers must track accrual and use.
While accrued sick leave need to be paid out on separation, those who are rehired within a year get their accrued sick leave reinstated.
Restaurants in California are required to put up new posters displaying information on paid sick leave. Restaurants also must inform employees of their rights upon hiring new employees and then keep sick leave records for at least three years. There are a number of other uses allowed for sick time, such as caring for a sick relative, coping with domestic abuse, and of course, actually being sick.
On the heels of the U.S. Supreme Court’s historic ruling in Obergefell v. Hodgeson June 26, 2015, holding that that there is a constitutional right to same-sex marriage under the 14th Amendment and striking down state-level bans on the practice, the rights of certain religious restaurant owners and other businesses, such as wedding planners, caterers and bridal salons, to refuse service to customers on the basis of sexual orientation will come to the forefront.
Restaurants and bars qualify as “public accommodations” under federal law, even if they’re a private business. That means it is illegal under the Civil Rights Act of 1964 for those businesses to discriminate or segregate on the basis of “race,” “color,” “religion,” or “national origin.” (It is also illegal to refuse service to disabled or handicapped individuals, under the Americans with Disabilities Act.) While federal law does not include “sexual orientation” within the group of people who are protected from discrimination, laws in many states do protect those groups. For example, California law prohibits the arbitrary exclusion of individuals from a restaurant based on their sexual orientation or marital status. (Unruh Civil Rights Act, Cal. Civil Code § 51 et seq.; see also Rolon v. Kulwitzky (1984) 153 Cal.App.3d 289.) Even in states where discrimination against LGBTQ people isn’t banned, such as Arizona, local laws may prohibit sexual orientation discrimination. Continue reading Same-Sex Couples’ Rights in Restaurants and Bars→
• April 30, 2015 is the deadline for employers covered by the Health Care Security Ordinance (HCSO) and the Fair Chance Ordinance to submit their 2014 Employer Annual Reporting Forms. If you are a restaurant owner or employer with 20 or more employees, you may likely be covered by the HCSO. If you cannot meet the April 30 deadline, a penalty of $500 per quarter will be assessed until the form is submitted. Please carefully review the instructions before submitting the form.
• May 1, 2015 is the effective date for San Francisco’s minimum wage to rise to $12.25 per hour. The Minimum Wage Ordinance requires all employers to post a notice informing employees of their rights. The notice must be posted at each workplace in San Francisco in a location where employees can read it easily.
• July 1, 2015 is the effective date when key provisions of the new paid sick leave law, the California Healthy Workplace Family Act of 2014, take effect. There are a number of new requirements for employers under this law, so please be sure to review the application of the new law with an employment law attorney. Employers must provide at least 24 hours or 3 days of paid sick leave for each eligible employee per year, display a poster on paid sick leave where employees can read it easily, provide written notice to employees with sick leave rights at the time of hire, keep records showing how many hours have been earned and used for 3 years, and comply with additional requirements.