Overtime Myths in the Restaurant Industry

Overtime myths can circulate in any line of work, and the restaurant industry is no exception. Some of the most prevalent myths deal with wages and overtime. As an employer, it is vital that you don’t fall for these myths because they could lead to unnecessary disputes, lawsuits or compliance penalties. An Employee Can Waive the Right to Overtime Sometimes employers get the idea that if an employee is willing to work longer hours and waive overtime, it works out well for both of them. However, under the FLSA (Fair Labor Standards Act) , when an employee who is not an exempt employee (not a manager, executive, etc.) works overtime (over 40 hours in a workweek), employers must pay the employee for overtime. A workweek can begin or end on any day that the employer designates. In fact, an employee, who waived overtime, actually has the legal right to turn around and sue the employer for overtime pay. An Employer Can Compensate an Employer in Other Ways than Paying Overtime Another myth is that an employer can compensate an employee who works more than 40 hours by giving the employee extra time off called compensatory time or “comp time.” Employers cannot compensate in ways other than paying overtime. The FLSA requires overtime work to be paid at a rate of not less than one and a half times the employee’s regular pay rate. An Employer Does Not Have to Pay Overtime for Unauthorized Overtime Work It can be frustrating for employers who instruct their employees not to work over 40 hours and discover that unauthorized work was done. Employers...

Religious Discrimination and Undue Hardship

Religious discrimination in the workplace violates Title VII of the Civil Rights Act. Employers must, for the most part, accommodate employees concerning their religious practices in regards to the following: Flexible scheduling Voluntary shift swaps or substitutions Job reassignments Modifications to workplace policies or practices If a worker has to take day off for religious observance, the employer should make accommodations. Certain dress codes or grooming policies may need to be relaxed for wearing a Jewish yarmulke or Muslim headscarf, or for beards and long hair (Rastafarian dreadlocks or Sikh). Undue Hardship The exception to accommodating religious beliefs or practices is when accommodation would cause undue hardship for the employer. Examples include: High cost to the employer Workplace safety being compromised Reduced workplace efficiency Infringing on the rights of other employees Requiring other employees to do more than their share of hazardous or burdensome work Recent Case the EEOC Brought Based on Religious Discrimination The EEOC  filed a lawsuit in August against Century Park Associates, LLC. The company operates senior and assisted living communities in 20 different states, but the facility named in the lawsuit was located in Tennessee. The EEOC alleged that by demanding two employees work on the Sabbath, the company violated Title VII of the Civil Rights Act. Two employees, who were members of the Seventh Day Adventist Church, observe the Sabbath from sundown Friday to sundown Saturday. The company was implementing a new work schedule and insisted that the employees work on Saturdays. When the employees refused, based on religious practices, the company asked them to resign. They resigned and then asked for reinstatement by...

National Origin and Race Discrimination and Retaliation: EEOC Sues Long Island Company

Claims of national origin and race discrimination along with retaliation were the basis of an EEOC lawsuit brought against a Long Island Company headquartered in Massapequa, NY in August 2017. A&F Fire Protection Co, Inc. is a sprinkler installation company that allegedly violated federal law by allowing a hostile work environment where black and Hispanic employees were routinely subjected to racial insults. Details of the National Origin and Race Discrimination Allegations The EEOC’s lawsuit alleged that repeated racial harassment occurred with workers being called the “N-word,” “spics,” “jigaboo,” and “wetbacks.” The company failed to take action to end the discrimination and instead either forced complaining employees to quit or fired them, which is retaliation under federal law. Prior to filing a lawsuit, the EEOC used its conciliation process to try and reach a settlement. The lawsuit against the company seeks the following: Back wages Compensatory damages Punitive damages Changes in employment policies to prevent future harassment or retaliation The EEOC New York District Office Regional Attorney Burstein pointed out that the abuse was pervasive and that upon learning about racial harassment, employers are obligated by law to ensure it stopped. The EEOC New York District Office Director Kevin Berry emphasized that retaliation against the employee who complains against discriminatory behavior is one of the EEOC’s top priorities when reviewing claims. Another EEOC Trial Attorney, Kirsten Peters reminded employers that even one utterance of a racial slur by a supervisor in a workplace constitutes a hostile work environment and can be legally actionable based on recent case law. At the First Sign of a Discrimination Dispute, Consult with an Employment...

New York City Faces Lawsuit for Trying to Enforce Menu Labeling Law

Although the federal menu labeling law was passed as part of the 2010 Affordable Care Act, it has been stopped from going into effect several times. It was originally going to become effective in 2016. When the Food and Drug Administration (FDA) postponed menu labeling for a year in May 2017, the new date for it to go into effect was established as May 7, 2018. Despite the federal delay, Restaurant.org reported that the New York City government intended to go ahead and enforce the labeling law anyway, and enforcement would begin on August 21, 2017. However, the Restaurant Law Center along with the Food Marketing Institute, National Association of Convenience Stores and New York Association of Convenience Stores filed a lawsuit against NYC. They alleged that the city was in violation of federal law and was attempting to preempt federal governance. Details of the Federal Menu Labeling Law The menu labeling law requires establishments, which are part of a chain with 20 or more locations and which do business under the same name and basically offer the same menu items, to provide calorie and nutritional information for standard menu items. This requirement applies to self-service food and food on display. Consumers must be given the information in a “direct and accessible manner to enable consumers to make informed and healthful dietary choices.” (FDA on food labeling) Some foods are delivered to restaurant chains as completed products and already contain calories and other nutritional information in the packaging. Other foods require nutritional analysis and lab testing, which can incur expenses for the restaurant and other establishment chains. This law...

Should You Have an Arbitration Clause in Your Employment Contract?

There is a reason that arbitration has gained a foothold in business disputes over the past 20 years, whether between employees and employers or between businesses. The Advantages of Arbitration Arbitration offers business owners advantages as a means of dispute resolution including the following: Lower costs. Generally, arbitration is less expensive than litigation. Faster resolutions. Nolo reports that a recent study done by the Federal Mediation and Conciliation Services that the average time for an arbitrated case to resolve is 475 days from filing. In contrast, the average litigated case takes 18 months to three years. Scheduling flexibility. Flexibility exists to schedule arbitration, such as during weekends or evenings, if necessary. Less formal rules of procedure than in litigation. Arbitration is not subject to the strict rules of evidence and procedure that a trial involves. It can help parties avoids delays, the long drawn out discovery and other tactics that drag out trials. Privacy. Typically, parties can keep matters private, which is advantageous for companies that want to avoid bad publicity. Two Recent Fox News Cases Where Employers Fought for Arbitration The New York Law Journal  reported that in the recent lawsuit of July 2016 where News Anchor Gretchen Carlson sued former Fox News Chairman, Roger Ailes, she tried to avoid mandatory arbitration by only suing Ailes and not Fox News. As it turned out, the case settled outside of court for $20 million before the court ruled on Ailes’ petition to arbitrate. In August 2016, former Fox News Anchor Andrea Tantaros sued Ailes for sexual discrimination, and Fox News filed to compel arbitration. In this case, a judge...