Employee Hiring

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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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:

Why Can’t the Employee Screening Process Be Simplified?

A National Restaurant Association (NRA) representative told members of Congress that the increasing number of local and state employment verification laws and regulations have complicated the screening process for potential employees and exposed restaurant owners to increased legal liability. NRA senior vice president of labor and workforce policy, Angelo Amador, spoke at a February hearing of the House Judiciary Committee Subcommittee of Immigration and Border Security, saying that the Legal Workforce Act, which the association supports, should preempt local laws and create a more streamlined system for verifying job candidates’ immigration status.

The proposed law would change the existing Immigration and Nationality Act to make mandatory and permanent the use of the federal electronic employment eligibility verification system, E-Verify. Amador testified:
“In the current system, employers are boxed in by federal regulations that, on one side, require them to conduct the I-9 (employment verification) process on every person they hire and, on the other side, limit their ability to question the validity of authorization and identity documents used during that process…Out of this frustration, and the frustration caused by the federal government’s inability to move forward on the issue, many states and localities have responded with a patchwork of employment verification laws.
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Are my employees affected by the President's executive actions on immigration?

Immigration is a hot button political issue. Despite varying views from political parties and people around the country, the reality is that much of the restaurant industry would cease to function without immigrant labor.

Recent executive action by President Obama expanded some immigration programs.
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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.

One of the greatest obstacles standing between the success or failure of your restaurant is your employees. Mario Batali settled a recent wage and tip lawsuit for $5.25 million dollars folowing employee claims that Batali deducted 4-5% of nightly wine sales from the tip pool to cover the cost of sommeliers and wine related expenses because his waiters often had nothing to do with the sale of the wine. The Department of Labor has spoken firmly on this issue and maintains that a tip is the sole property of the tipped employee regardless of whether a tip credit is claimed by the employer. Therefore, even though Batali's sommeliers were the driving force behind the sale of more expensive bottles of wine, the tips associated with those increased sales remained the property of Batali's waitstaff.

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.