On January 1, 2019, several new laws that were enacted in the wake of the #MeToo Movement will take effect in California. Employers may be impacted most by the new laws that require sexual harassment training of all employees – not just managers – and affect the confidentiality of settlements regarding sexual assault, sexual harassment, sex discrimination or retaliation. Please see our Duane Morris client alert for more details on these new laws, as well as other laws that will pose significant new challenges for employers.
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
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.
If you don’t have a written policy against discrimination, harassment, and retaliation, now is the time to work with a lawyer on one. Notably, one of the many changes is that the amended FEHA regulations require every California employer to develop a harassment, discrimination, and retaliation prevention policy that: Continue reading It’s Time to Update Your Anti-Harassment and Anti-Discrimination Policy: Big Changes to FEHA Regulations Take Effect April 1
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?
On the heels of the U.S. Supreme Court’s historic ruling in Obergefell v. Hodges on 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