Article contributed by Paul P. Rooney, Ellenoff Grossman & Schole LLP
Vigilance is the price of staying out of legal hot water in the hospitality industry.
Before the Department of Labor, EEOC, or plaintiff lawyers, come calling, there are simple steps restaurant owners can take on their own to ensure compliance with the law.
Wage and Hour Compliance
Wage and hour compliance is still critical for restaurant owners who want to avoid costly legal battles. The Fair Labor Standards Act (FLSA) and New York Labor Law establish minimum wage, overtime, and record-keeping requirements.
To steer clear of wage-hour claims, check your wage-hour records to ensure:
- You are paying overtime at the correct rate;
- You are providing “spread of hours” pay (hint – if you have never heard that phrase you’re probably not complying)
- Employees clock in and out for breaks of 20 minutes or more;
- All employees have received a Form 195 (Acknowledgment of Pay Rate & Pay Date);
- All manual workers (those who perform manual labor at least 20% of the time) are paid weekly.
Discrimination and Harassment
Restaurant owners must also be vigilant about preventing discrimination and harassment in the workplace, which is prohibited under Title VII of the Civil Rights Act of 1964 and state and city human rights laws. It is recommended that employers:
- Ensure that all managers and employees have had annual anti-harassment training;
- Ensure that new hires receive anti-harassment training;
- Review pay records to see if there are significant disparities in pay between men and women exist among persons doing the same or substantially similar jobs;
- Remind interviewers that in NYC it is unlawful to: i) discriminate on the basis of height or weight (Knicks and Nets excepted); or ii) to request applicants’ pay
history.
Employee Free Speech
As the presidential race begins in earnest, employers, including restaurants and bars, may have to contend with employees who wish to wear, or display, political symbols or controversial messages.
The First Amendment of the U.S. Constitution only prevents the government from barring free speech. Employers may regulate on the job speech, except speech for purposes of employees’ collective action, complaints about discrimination, and whistleblowing. If you wish to prevent conflict arising from employees’ displays of social and political messages, you may:
- Adopt a policy that prohibits the display of any messages or symbols that are not company-related on clothing, jewelry, accessories, etc.; and
- You should apply such a policy consistently (i.e., if you ban red “MAGA” hats you should also ban blue “We’re Still Here” hats sold by the HBO Show “Reel Time”).
If you’re free to regulate employee speech, why do you have to be consistent? Because selective regulation of speech may be seen as an effort to discriminate against certain employees because of their protected characteristics or outside activities that the law protects.
An employee punished for wearing a “David Carr for City Council” while allowing Kamillah Hanks buttons, may argue that the employer is trying to punish them, not for the speech, but for their actions outside of work supporting Mr. Carr’s candidacy. And Section 201-d of the New York Labor Law protects their right to engage in politics, and other lawful activities, outside of work.
Similarly, if Black Lives Matter tee shirts are banned but Proud Boys tee shirts are permitted, employees may assert that their speech is being singled out because of their race, which would be illegal.
Notably, Whole Foods Market defeated a discrimination lawsuit in Massachusetts brought by employees who were punished for wearing Black Lives Matter clothing where Whole Foods: a) maintained a dress code policy that prohibited employees from “wearing clothing with visible slogans, messages, logos, or advertising that are not company related”; and b) consistently enforced it and did not single out the employees wearing Black Lives Matter clothing for punishment. Any restaurant could do the same thing.
Occupational Safety and Health
Ensuring a safe working environment is a paramount responsibility for restaurant owners. The Occupational Safety and Health Administration (OSHA) sets standards for workplace safety and health, and restaurant owners must comply with these regulations to protect their employees and avoid legal liability.
Common safety issues in restaurants include slip and fall hazards, burns, cuts, and exposure to harmful chemicals. Regular inspections, employee training, and proper safety protocols can help mitigate these risks and demonstrate a commitment to employee well-being. Neglecting workplace safety can lead to OSHA fines, legal claims, and reputational damage.
Conclusion
Operating a restaurant involves more than just serving delicious food; it requires a comprehensive understanding of employment law to navigate the complex legal
landscape.
From wage and hour compliance to discrimination prevention, restaurant owners must proactively address employment-related issues to ensure the success of their businesses. Staying informed, implementing clear policies, and seeking legal counsel when necessary are crucial steps in mitigating legal challenges and safeguarding the well-being of both employees and the restaurant itself. By prioritizing compliance and fostering a positive work environment, restaurant owners can thrive in an industry that continues to evolve in terms of employment law standards and expectations.
Paul P. Rooney is a Partner at Ellenoff Grossman & Schole LLP. He specializes in employment law and civil litigation, and advises clients about their legal rights and responsibilities, drafts employment agreements, handbooks, and policies, and performs employment-related corporate due diligence. His cases have included numerous collective actions under The Fair Labor Standards Act, and claims under Title VII of the Civil Rights Act of 1964, and The New York State and City Human Rights Laws. Mr. Rooney has also litigated cases involving covenants not to compete, claims of breach of contract and breach of fiduciary duty, and defamation. Paul P. Rooney (prooney@egsllp.com) can be reached via phone at 212-370-1300.
