An overflow audience packed the conference room at HUB Insurance’s Midtown office last month for the latest installment of the HUB/Total Food Service Industry Seminar series. The latest topic dealt with what could only be termed as the realities of delivery with a fascinating look at the labor force that supports it.
HUB’s Mark Lee gave an opening presentation that outlined an overview of issues. The next presenter was an animated Amanda Fugazy, partner from law firm Ellenoff Grossman and Schole. Fugazy helped the room understand “that these people have to be working for someone”. She was explaining that when a delivery driver whether on a bike or in a motor vehicle hits someone or something or harasses an employee while waiting for a delivery that the restaurant cannot say that he or she doesn’t work for my restaurant unless they are in fact an employee of a delivery service. The panel then outlined exactly how this concept of Joint Employer Liability works.
NYSRA’s Kevin Dugan, who is always a fountain of information, chimed in with a legislative view of how important it is that a restaurant takes the time to properly vet the delivery service it works with. Restaurants must make certain the delivery personnel are in fact employees.
Ellenoff’s Ilan Weiser brought a fascinating point into play when it comes to restaurant design. “Many restaurants now have a pick-up area in the store for the delivery driver,” Weiser said. “The difference between that area being behind the counter where POS terminals and restaurant staff work and in front of that area, can actually define whether that driver is an employee or contracted worker.”
HUB’s restaurant guru Bob Fiorito, with a background of having been a restaurateur himself, brought his unique perspective. His advice to the large assembly was to have whomever a restaurant’s broker is to carefully review liability policies before signing with a third-party vendor.
Among the variety of topics that came up were the impact of restaurants being legislated recently to have to take cash from customers, and the growth of ghost kitchens. The panel even touched on the question over whether the restaurant or the delivery service own the customer information data. The importance of understanding bicycle liability came to the floor. Even the most basic of traditional W-2 versus 1099 tax issues including what an employer can and cannot say to a driver that isn’t an employee.
The real takeaway from the session was that today’s operator with growing delivery revenues, needs to take a long hard look at balancing the GrubHub and UberEats fees (assuming the chosen delivery service employs their drivers) versus the potential liability of using a minimum wage employee of the restaurant.
If this event was an indication of what’s to come in the HUB/TFS series in 2020, restaurateurs should stay tuned for the dates of the upcoming seminars.
