Category Archives: Employment Practices Liability

by | December 25, 2012 · 8:25 am

Hospitality Industry Legal Risks: Oregon Restaurant Employee Awarded $70,000 In "Unlawful Employment Practices" Lawsuit; Woman Claimed Discrimination After Filing For Workers' Compensation

“…the (plaintiff) was placed in a position to work near heat, which caused a re-blistering of the wound, according to the lawsuit…(her) physician contacted the worker’s compensation carrier again to say she was to Hospitality Industry Lawsuitwork on modified duties without exposure to heat, the lawsuit states KFC continued to expose Vargas to heat in the workplace…”

“…her physician instructed her not to return to work because KFC was not able to follow the modified duty requirement. Vargas then told her employer she could not return to work until her burn healed…two days later, KFC terminated her employment, stating that Vargas had resigned…”

A Salem woman was awarded more than $70,000 after a lawsuit she filed against Chick Inc., the Salem company that owns three KFC franchises, for unlawful employment practices. Jurors unanimously found in favor of plaintiff Sarai Vargas, who claimed she was wrongfully discharged and that she experienced discrimination after filing for workers compensation because of a workplace burn. A four-day trial ended Dec. 14.

While wearing protective gloves, Vargas suffered second-degree burns after grease splattered on her right arm as she pulled chicken from the grill oven May 9, 2010, Vargas’ lawyer Larry Linder said.

Vargas was treated by a doctor for the burn and was cleared to return to work on a modified duty, which included light activity with no exposure to heat, Linder said.

For more:  http://www.statesmanjournal.com/article/20121225/NEWS/312250021/Woman-who-took-KFC-court-wins-70-000

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by | December 15, 2012 · 12:59 pm

Hospitality Industry Legal Risks: Restaurant Owners Should Provide Comprehensive Employee Handbooks That Describe Employees' Rights, Expectations And Company Obligations

Small Business AdministrationAn employee handbook is an important communication tool between you and your employees. A well-written handbook sets forth your expectations for your employees, and describes what they can expect from your company. It also should describe your legal obligations as an employer, and your employees’ rights. This guide will help you write an employee handbook, which typically includes the topics below.

Anti-Discrimination Policies

Compensation

Work Schedules

  • Work hours and schedules
  • Attendance, punctuality and reporting absences
  • Guidelines for flexible schedules and telecommuting.

Standards of Conduct

  • Dress code and ethics
  • Legal obligations

General Employment Information

Safety and Security

For more: http://www.sba.gov/content/employee-handbooks

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by | December 13, 2012 · 7:42 am

Hospitality Industry Employment Risks: California Restaurants In "Well-Known Tourist Areas" Investigated By U.S. Dept. Of Labor Agree To Pay $670,000 In "Unpaid Minimum Wages And Overtime"

“…(Wage and Hour Division investigators)…found widespread labor violations among restaurants in well-known tourist areas in San Francisco and throughout Los Angeles County…culture of noncompliance Hospitality Industry Wage and Hour Litigationadversely impacts the wages and working conditions of many low-wage, vulnerable workers…”

Wage and Hour Division investigators with the U.S. Department of Labor conducted comprehensive reviews of payroll records and employment practices in both San Francisco and Los Angeles, in addition to employee interviews, and found that restaurants were violating minimum wage, overtime and record-keeping provisions.

As a result, 273 restaurant workers will divvy up $672,333 in unpaid minimum wages and overtime compensation, according to the feds.

The Fair Labor Standards Act requires that covered employees be paid at least the federal minimum wage of $7.25 per hour, as well as time-and-a-half of their regular rates for hours worked over 40 per week. The law also says employers must keep accurate records of employees’ wages, hours and other conditions of employment, and prohibits employers from retaliating against employees who exercise their rights under the law. If employers don’t abide by these rules, they are liable to pay back wages and an equal amount in liquidated damages to employees.

For more:  http://blogs.sfweekly.com/thesnitch/2012/12/restuarant_workers_wage_and_hour_division.php

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by | November 30, 2012 · 7:28 am

Hospitality Industry Employment Risks: Arizona Restaurant Settles EEOC "Pregnancy Discrimination" Lawsuit For $15,000; Servers Removed From "Sunday Football Schedule"

“…The EEOC’s lawsuit…charged that Sandbar instituted a policy of removing pregnant women from its Sunday schedule at its Peoria restaurant in an attempt to allegedly satisfy its male Sunday football EEOCcustomers… it believed its male customers did not wish to see pregnant women while they watched Sunday football games. Working on Sundays during football season was the most or one of the most lucrative shifts during the week for the pregnant employee…”

A Peoria, Ariz., restaurant will pay $15,000 and furnish other relief to settle a pregnancy discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today. The EEOC had alleged that West Sand, LLC, doing business as Sandbar Mexican Grill, unlawfully removed a pregnant employee from working on Sundays during football season because she was pregnant.

According to the EEOC, pursuant to this policy, Sandbar removed a pregnant woman from its lucrative Sunday schedule, causing her a significant loss of income. Sandbar denied the discrimination.

Sandbar Mexican Grill will pay $15,000 to the female employee to resolve this EEOC case. Under the consent decree settling the suit, Sandbar also must also (1) provide anti-discrimination training for all employees who work at its Peoria location; (2) review and revise, if necessary, its policies to ensure they prohibit sex and pregnancy discrimination as well as retaliation and ensure a strong and clear commitment to a workplace free of such bias; (3) investigate allegations of sex discrimination, pregnancy discrimination and retaliation promptly, fairly, reasonably, and effectively and ensure that appropriate corrective action is taken; and (4) post a notice that sex and pregnancy discrimination -or retaliation for complaining about it – is unlawful.

“Pregnancy discrimination remains a persistent problem in the 21st-century workplace,” said Mary Jo O’Neill, regional attorney of the EEOC’s Phoenix District Office. “Employers cannot disadvantage the terms and conditions of a pregnant employee’s work to satisfy an assumed customer preference about the physical appearance of employees, which is likely untrue in any event.”

EEOC District Director Rayford Irvin added, “The EEOC will continue to be vigilant in rooting out pregnancy discrimination. This type of unlawful exclusion is never a winning game plan.”

For more:  http://www.eeoc.gov/eeoc/newsroom/release/11-28-12a.cfm

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by | November 20, 2012 · 7:22 am

Hospitality Industry Legal Risks: Colorado-Based Restaurant Group Will Defend Itself Against Class-Action Lawsuit Alleging Overtime Violations; Company Maintains That Managerial Salaried Employees Are "Apprentices"

“…The class-action complaint…says Chipotle misclassified its “apprentices” as managerial salaried employees who don’t qualify for overtime pay. The suit contends apprentices earn salaries of $40,000 but frequently work more than 40 hours a week and often perform the duties of hourly workers, including cooking and filling orders…”

Chipotle Mexican Grill Inc. says a lawsuit alleging the Colorado- based company has failed to pay overtime to hundreds of employees is frivolous.

Chipotle spokesman Chris Arnold said the restaurant chain carefully defines the roles in its restaurants and that the apprentice position is “clearly” a managerial role ineligible for overtime, under state and federal laws.

The lawsuit seeks back pay and damages. Chipotle has about 1,350 restaurants.

For more:  http://www.insurancejournal.com/news/west/2012/11/19/271081.htm

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by | November 19, 2012 · 7:26 am

Hospitality Industry Legal Risks: Michigan Hotel Sued By EEOC For "Terminating Pregnant Housekeeper"; Employers May Not Exclude Pregnant Women Based On Their "Concerns About Safety Of Unborn Child"

“…Ramin fired a housekeeper shortly after it learned of her pregnancy. The company stated that it could not allow her to continue to work as a housekeeper because of the potential harm to the development of her baby…”

The U.S. Equal Employment Opportunity Commission (EEOC) filed a lawsuit today charging that Ramin, Inc., a Comfort Inn & Suites franchise owner in Taylor, Mich., violated federal law when it terminated a pregnant housekeeper because of her pregnancy.

Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act, protects female employees against discrimination based on pregnancy, and the Supreme Court has expressly rejected the notion that an employer may exclude pregnant women from employment based on its own concerns about the safety of the unborn child.

The EEOC seeks injunctive relief to prevent Ramin from discriminating against pregnant employees or applicants in the future, as well as monetary relief on behalf of the victim.  The EEOC filed suit after first attempting to settle the case through its conciliation process.

“Pregnancy discrimination is rarely subtle,” said Lauren Gibbs Burstein, attorney in the EEOC’s Detroit Field Office.  “Employers may not bar pregnant employees from work because of outdated myths or stereotypes.  The EEOC will vigorously defend the rights of pregnant workers to provide for their families by remaining employed.”

For more:  http://www.eeoc.gov/eeoc/newsroom/release/11-13-12c.cfm

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by | November 10, 2012 · 7:57 am

Hospitality Industry Employee Risks: California Hotel Settles "Sexual Harassment And Retaliation Lawsuit" With EEOC For $195,000

In 2010, a female employee filed the EEOC charge of discrimination alleging that a male supervisor made sexual comments and referenced an image of a sexual nature.  The female employee further alleged that upon reporting the sexual harassment, the male supervisor retaliated against her by issuing written discipline and treating her differently.

DNC Parks & Resorts at Tenaya, Inc. which operates Tenaya Lodge, a hotel and resort near Yosemite National Park in California, will pay $195,000 and furnish other relief to settle a federal charge of sexual harassment and retaliation filed with the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced today.

Following an EEOC investigation, the director of EEOC’s Fresno Local Office determined that there was reasonable cause to believe that the female employee was sexually harassed due to her gender, female, and that she was subjected to retaliation for reporting the harassment, a violation of Title VII of the Civil Rights Act.  The EEOC also found reasonable cause to believe that a class of other female employees was also sexually harassed due to gender.  Tenaya Lodge denied the allegations of sexual harassment and retaliation, and the company did not admit to liability while agreeing to settle the matter.

Following the EEOC’s determination, the EEOC entered into a one-year conciliation agreement with Tenaya Lodge and the female employee in question.  The agreement effectively settles the case administratively, thereby avoiding litigation.  The agreement provides for $100,000 in monetary relief for the female employee who filed the EEOC charge.  An additional $95,000 is designated as a class fund for eligible claimants who also encountered sexual harassment and/or retaliation while working at Tenaya Lodge.

Aside from the monetary relief, Tenaya Lodge will provide equal employment opportunity training for all current employees and, thereafter, for all new hires in the language that the employee understands, along with additional training for managerial and human resources staff on how to deal with discrimination, harassment and retaliation.  Tenaya Lodge also agreed to post a notice about the settlement in English and Spanish; to report future instances of discrimination to the EEOC; and to publicize the settlement via press release.

Workers have the right to report sexual harassment or other forms discrimination on the job without negative repercussions,” said Melissa Barrios, director of the EEOC’s Fresno Local Office.  “We commend Tenaya Lodge for working with the Commission to resolve this matter and for agreeing to implement measures to protect their employees from harassment, discrimination and retaliation.”

For more:  http://www.eeoc.gov/eeoc/newsroom/release/11-7-12.cfm

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by | October 26, 2012 · 6:40 am

Hospitality Industry Legal Risks: Oklahoma Restaurant Group Sued By Labor Department For Violating Fair Labor Standards Act; Fixed Salaries Without Overtime And Tips Alleged

“…FLSA-covered employees, who in some cases worked as many as 72 hours in a week, were paid a fixed salary without overtime compensation for hours beyond 40 in a week. In addition to overtime violations, this practice resulted in minimum wage violations because employees did not always receive at least the federal minimum wage of $7.25 per hour. Investigators also found that wait personnel were required to turn their tips over to management at the end of every shift, which caused their pay to fall below the minimum wage. Finally, the employer did not keep proper records as required…”

The U.S. Department of Labor has filed a lawsuit against Tulsa-based El Tequila LLC and owner Carlos Aguirre after an investigation by the department’s Wage and Hour Division found that the defendants violated the Fair Labor Standards Act’s minimum wage, overtime and record-keeping provisions. These violations resulted in a total of approximately $1 million in unpaid wages owed to 221 kitchen and wait staff, hosts and bussers at four restaurant locations.

The suit was filed in the Northern District of Oklahoma, Tulsa Division, and it seeks to recover the full amount of back wages for the employees as well as an injunction prohibiting future violations of the FLSA.

“The restaurant industry employs some of our country’s lowest-paid, most vulnerable workers,” said Secretary of Labor Hilda L. Solis. “When violations of the FLSA are discovered, the Labor Department will take appropriate action to ensure workers receive the wages they have earned and to which they are legally entitled.”

Violations were found at the company’s restaurants on Memorial Drive and South Howard Avenue in Tulsa, East 86nd Street North in Owasso and North Elm Place in Broken Arrow.

The FLSA requires that covered, nonexempt employees be paid at least the federal minimum wage of $7.25 for all hours worked, plus time and one-half their regular rates for hours worked beyond 40 per week. In accordance with the FLSA, an employer of a tipped employee is required to pay no less than $2.13 an hour in direct wages provided that amount plus the tips received equals at least the federal minimum wage of $7.25 an hour. If an employee’s tips combined with the employer’s direct wages do not equal the minimum wage, the employer must make up the difference. Employers are required to provide employees notice of the FLSA’s tip credit provisions, to maintain accurate time and payroll records, and to comply with the act’s restrictions applying to workers under age 18.

For more: http://www.dol.gov/opa/media/press/whd/WHD20122050.htm#.UIqdN4b0_h8

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by | October 19, 2012 · 6:46 am

Hospitality Industry Legal Risks: Florida-Based Restaurant Group Faces Five Separate "Federal Labor Law Class-Action Lawsuits"; Employees Required To Work "Off The Clock" And Skip Required Breaks

“…Lawsuits filed by the Mexican-American Legal and Education Fund accuse Darden Restaurants—which owns the Capital Grille, Red Lobster and Olive Garden chains—of violating state and federal labor laws…the suits claim the restaurants regularly ask employees to work off the clock, skip legally required breaks and report to work when sick…”

The world’s largest full-service restaurant ownership company faces five separate class-action lawsuits filed by a group that works to protect restaurant workers’ rights.

The litigation began as a single class-action lawsuit filed in federal court in Chicago, with state class-action claims covering workers in Illinois, as well as California, Florida, Maryland and New York. Eventually, the lawsuit was severed into five jurisdictions due to the large size of the classes and the complexity of the various state claims. Five regional U.S. District Courts will hear the cases.

The lawsuits were initiated by the Restaurant Opportunities Cen­­ters United, which seeks to improve wages and working conditions for low-wage restaurant workers.

For more:  http://www.businessmanagementdaily.com/33010/worker-advocates-cook-up-five-suits-against-restaurant-group

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by | September 24, 2012 · 6:30 am

Hospitality Industry Legal Risks: "Tip Pool Skimming" Class-Action Lawsuit Filed Against New York Restaurant; Over 100 Former Waitstaff Claim Managers Took 26% Of Tips

“…The suit, filed by more than 100 people who’ve worked there for the last six years, also claims that Les Halles paid waitstaff less than the $5 minimum wage for food service employees…”

Anthony Bourdain’s Les Halles is the latest restaurant to be hit with a lawsuit from waitstaff alleging that management skimmed from their tipping pool. Both of the restaurants’ locations are named in the suit, which according to the Post alleges that floor managers took 26% of the pool.

“In my experiences at Les Halles, management was, if anything, unusually scrupulous about these things,” Bourdain, the chef-at-large, said, referring to the group of people who almost certainly do not raid the bar after-hours while blasting a Kool & The Gang Pandora station through the restaurant’s speakers.

We always preferred pooling as opposed to the vicious, territorial struggle of solo-sectioning, but this could be Bourdain’s biggest stumbling block since he ate a bunch of flesh in front of starving rich people.

For more:  http://gothamist.com/2012/09/23/anthony_bourdains_les_halles_sued_f.php

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