Article contributed by Gregg Kligman, Meister Seelig & Fein LLP Hospitality Group
As we bob and weave through the opening act of 2022, there is a seemingly endless agenda on a restaurateur’s proverbial plate.
I’ve created a new goal/vision: “The End-Demic”. As many restaurants continue hiring and bringing back their staff, the emphasis needs to be on the paperwork, paperwork, paperwork. Operators need to make sure they have their documentation right. I’m still surprised at how many people still aren’t doing that. And the paperwork is going to be your biggest cause of issues. I know your business moves too fast to do it, so at least ask for help in advance. I promise it will avoid headaches and unnecessary expense.
Let’s start with a fairly simple step. A lot of operators aren’t implementing or giving out HERO Act (New York Health and Essentials Rights Act) plans to their employees. The HERO Act was passed by the state to require employers to establish safety guidelines and protocols outlining the efforts they are taking to protect their employees and what standards they have in place to ensure the restaurants are as safe as possible. There are a lot of potential trip-ups with improper distribution of the HERO Act plan. Again, it’s simple and we can help.
Given that the HERO Act plan must be included in your employee handbook, our advice is to redistribute an updated employee handbook, including the HERO Act plan, to all of your employees. Given all the notices, policies, everything nowadays, it’s certainly advisable to have an employee handbook in place. It is a simple mechanism to use for distribution of all the legally required notices to your workforce.
There’s just so much information you must give employees and a comprehensive employee handbook can be your one stop shop to have all your policies and required notices, and it will be something you will automatically give out at hire and to all employees when you make updates.
Next on our suggested agenda is addressing all things Takeout & Delivery. With the drastic increase of takeout and delivery business, employers also must consider whether to employ delivery employees or to use a third party delivery service. Your decision depends on many factors. If you have your own people doing it, they’re employees so you have the expenses associated with that. For third party delivery services, you’re giving them a cut of your business, but you’re not necessarily dealing with the additional employees. This decision could also impact your employee count. You need to think the decision through because those two or three extra employees may bring you over the threshold for certain laws at play such as family medical leave (FMLA) and New York State’s COVID Sick Leave Law. When you’re looking at New York State COVID sick leave, if you have 95 employees and then you hit the 100-employee threshold when adding five delivery employees to your employee count, you’re looking at providing employees with 14 days of COVID sick leave as opposed to five days.
We were thrilled to see that New York Governor Hochul and Mayor Adams are focused on helping restaurant operators through these most challenging of times. The Governor has made an effort to bring back to-go cocktails, which are highly profitable for restaurants. Any additional revenue sources certainly must be welcomed. Businesses just have to be careful to make sure that they have protocols in place to ensure only people that are 21 and older and can legally consume alcohol are getting these to go cocktails.
In the ‘City, Mayor Adams has also made a strong effort to eliminate the red tape involved in opening a restaurant business. Anything that can be done to eliminate costs and barriers to entry is going to help small businesses because it helps improve the bottom line as it is being cut too small under the current business conditions.
One of the biggest challenges that we are seeing with our MSF restaurant clients are shortages and supply chain issues with everything from food & beverage to equipment & supplies being unavailable or more expensive. The short term solution lies in decreasing expenses without sacrificing the customer experience. In response, we’re seeing a lot of people streamlining their menus. A smaller, tighter menu, aside from helping from a shortage supply chain issue, also helps from a staffing issue point of view because when you have a smaller workforce in the back of the house, a smaller menu is obviously going to help your short staff handle the menu.
Among the most significant of solutions through the Pandemic has been outdoor dining. It also looks like there is legislation pending to allow the use of propane once again. Mayor Adams is in support of propane heaters, and as restaurants cope with business as it gets colder, I imagine that legislation should pass in the near future to allow restaurants to use propane heaters.
With an eye towards what we are calling the “End-Demic” there is cause for restaurants and operators to be cautiously optimistic. The industry has survived two years that many could never imagine. Many of these strategies we used as an industry will serve a building blocks for the restaurant industry’s future.
Gregg Kligman is counsel at Meister, Seelig & Fein LLP. The New York City-based law firm deals in all aspects of business litigation. Mr. Kligman specializes in the management side of employment counselling and litigation. As many businesses look to rebound and rebuild from the COVID-19 pandemic, employer-employee relations, and the law that follows, remain as complicated as ever. In the glimmer of light at the end of the COVID-19 tunnel, Mr. Kligman provides the latest, need-to-know information for owners and operators in the restaurant and hospitality industry.