Employee Rights

What is the Spread of Hours Law?

Title 12 of the New York Codes, Rules, and Regulations (NYCRR) §142-1.6 is a law that requires employers to pay any employee an extra hour of pay, at the basic minimum hourly rate, for any day on which the employee’s “spread of hours” exceeds 10. The spread of hours is defined as “the length of the interval between the beginning and end of an employee’s workday.”  Essentially, if an employee’s “punch in” and “punch out” time exceeds 10 hours on any given day, even if that employee left the restaurant or hotel for a 6-hour lunch and only actually worked 5 hours that day, the employer must pay them for an extra hour.  The additional hour of pay “is not payment for time worked or worked performed” and does not need to be included in the regular rate for the purpose of calculating overtime pay.
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I have been getting many calls from clients asking whether their restaurant (or restaurant group) needs to provide (and pay for) health insurance for their employees.  Unfortunately, the answer is not a simple one.

Beginning this year, companies with 50 full-time equivalent employees (“FTE”) must provide health insurance to at-least 70% of their employees.  In 2016, at-least 95% of all employees must be covered starting in 2016.  If your initial reaction was “I don’t have 50 full-time employees” don’t get too comfortable just yet.  Lets look at the facts:

As a restaurant owner, what are the limits regarding requesting applicants’ personal information? 

As a restaurant business owner, employee turnaround can be one of the most frustrating aspects of running the enterprise. Moreover, the ever-changing legislation pertaining to the restaurant and alcohol service industries can be overwhelming for even the most experienced owner or manager. Fortunately, a restaurant law attorney can help you overcome the legal quagmire of the food service industry, including the finer nuances of employment and anti-discrimination laws.

In June, 2015, the New York City Council followed the lead of nearly 100 other jurisdictions by banning the inclusion of criminal history consideration in the employment process. Under the Read more . . .

I am considering opening a restaurant in Manhattan. What are some compliance issues I should consider?

Owning a successful restaurant in New York City is tough, especially given the stiff competition and crabby critics. However, one area that need not be a headache is city and state compliance, The administrative regulations that apply to bars and restaurants are lengthy and detailed. If you are considering opening a restaurant in New York City, a restaurant and bar lawyer can help you better understand some of the most common pitfalls in regulatory compliance, including:

As of April 1, New York City restaurant workers have a financial safety net if they have to miss work because they're sick or have to care for a sick family member.

This is great for the employees receiving this type of compensation for the first time, but, how will the new sick leave law affect NYC restaurant owners?

Shiv Puri, owner of Manhattan's Bombay Sandwich Company, was concerned about the cost when he first heard about the law. However, after calculating costs and receiving more information, he is now confident about this new measure ,The New York Times reported. Puri said his eight employees were excited about this news, he said "It’s the law and it’s the right thing to do. It won’t bust the bank. It won’t put us (the business) in jeopardy.”

Puri pays his workers $10 an hour, which is $2 more than the state minimum wage rate, and considers himself a progressive employer, but as we stated, he was worried that the newly enacted regulation would negatively affect his business.

Some important things to note about NYC sick leave law:

One of the most important areas of law which restaurant owners have to contend with is labor and employment. In New York City in particular, restaurant owners and operators find it challenging to keep up with the myriad of federal state and city regulations that apply to their establishments. Working with an attorney that has experience and expertise in these issues can help you stay in compliance and out of legal hot water. 

Due to the recession, New York State, like many other states, was forced to borrow from the federal government to sufficiently fund unemployment benefits for eligible recipients. Employers must now repay, with interest, all federal monies borrowed. The federal government will collect this money from employers through higher Federal Unemployment Tax Act (“FUTA” – which employers already contribute to) rates and interest assessments.  For these reasons, unemployment insurance reform was needed and has already started to take effect. 

Before I discuss the recent changes, it is important to have a general understanding of unemployment insurance in New York.  As you may know, employees who lose their jobs through no fault of their own may be eligible for unemployment insurance, which is funded by contributions from the employer. Employers in New York pay two types of unemployment insurance contributions: (1) The Federal Unemployment Tax Act (“FUTA”), and (2) the New York State Unemployment Insurance contribution.  The New York State Unemployment Insurance fund is responsible for paying weekly benefits to eligible recipients. However, as previously discussed, the state fund is currently insolvent. The following changes went into effect on October 1, 2013 and were created to help New York State pay back the federal government faster, saving employers from paying an additional $200 million in interest payments. 

Several provisions of the Affordable Care Act (“Obamacare”) will impact small business owners and their employees. Many of our restaurant clients have expressed concerns about the cost of providing health insurance for all of their employees or otherwise being forced to pay a tax penalty. For those who are worried, the Obama Administration’s recent announcement that the mandate will be delayed until 2014 comes as a relief. This extra year will allow business owners needed time to plan for the upcoming changes.

While the mandates for small businesses may be daunting, there are several things that business owners should keep in mind. For starters, not all businesses will be affected. The term “small business” is somewhat misleading; only employers who have 50 full-time (or “full-time equivalent”) employees are mandated to obtain health insurance for their employees. One “full-time equivalent” employee is defined as two part-time employees, for example. Many restaurant owners employ less than 50 full-time employees and therefore will not be affected.

Some former employees of Juventino Restaurant in Park Slope have taken to the internet to lambaste management for sexual harassment they claim occurred while they were employed. Through their new website "Juventino Disclosed" Staffers are hoping to "bring awareness to sexual harassment in the restaurant industry and maybe deter some prospective customers in the process." Some readers have left comments on the website promising not to frequent the establishment in support of the ex-employees. Undeniably, social media is a powerful tool that can dramatically impact one’s business in a good way, or in this case, a bad way. But is it ethical or for that matter legal? Can restaurant owners protect themselves from this sort of backlash? Can they file a defamation suit against their employees the way that the owners of Bar Veloce have? Unfortunately, each situation must be handled on a case by case basis, so before you do anything to defend or retaliate, seek legal advice.

Most restaurant owners say that finding and retaining a qualified, service oriented staff are their most difficult tasks.  The law is very specific about what an employer can and cannot do to secure a workforce.  Before employees can be selected, managers must understand what the essential functions are for each job position (i.e. job description).  From there, managers can identify what qualifications candidates will need to perform the job.  These qualifications should be in writing in all job advertisements.  The object of this game is to protect yourself because hiring and maintaining employees is legally tricky. 

Job qualifications can include physical and mental requirements but cannot include characteristics that would unfairly prevent a class of workers from successfully competing for a position.  For example, requiring that your dishwasher be six feet tall would be inappropriate because women and certain minority groups might have difficulty meeting it.  All job qualifications must be “bonafide occupational qualifications” (BFOQ) which in the absence of, an employee would be unable to safely or adequately do that which was necessary of him/her to perform their job description. 

Employee handbooks are key to standardizing and communicating company policies. It is vital that a handbook is carefully drafted to meet the needs and realities of the particular company. Poorly drafted handbooks can have unintended and unexpected legal consequences. There are several issues that all companies should be aware of when creating and maintaining their handbook.

1. Improperly drafted handbooks can give rise to contractual obligations by a company to its employees. All handbooks should prominently display a disclaimer of contractual intent. The disclaimer should be clear and easily understood so that a reasonable employee could not believe that the handbook represents a contract. The disclaimer should be placed in bold at the beginning of the handbook.