Category Archives: Labor Issues

by | March 9, 2013 · 8:19 am

Hospitality Industry Legal Risks: Idaho Restaurant Chain Sued By Male Employee Who Claims “Only Women Allowed To Work As Bartenders”

“…lawsuit claims that service manager (stated) that the Louisville,Ky.-based chain’s regional director “only wanted girls working in the bar.” The complaint (states that restaurant) told women employees to wear tank EEOCtops and shorts to work and to “flirt with every guy that sits at the bar top…”

A former employee of the Texas Roadhouse restaurant in Ammon alleges only women can work as bartenders there, according to a complaint filed with the U.S. District Court of Idaho. Tim Fenton was employed at the restaurant as a trainer, bartender and server before his dismissal in October 2012.Fenton lost out on bartending assignments and Baird allegedly promoted a woman to tend bar that he had a crush on.

Baird also demoted Fenton from his position as a trainer allegedly in retaliation for his and his wife’s reports to Texas Roadhouse about the discrimination. Sam Angell, Fenton’s attorney, said his client made a formal complaint to the chain’s human resources department, but did not receive a report back regarding an investigation of the charges or its findings.

According to the Texas Roadhouse in Ammon, Baird is no longer employed at the restaurant. A representative for Texas Roadhouse corporate headquarters said he hadn’t seen the lawsuit so could not comment.

In order to pursue a job discrimination lawsuit in federal court, plaintiffs must first file a charge with the Equal Employment Opportunity Commission. According to Angell, the EEOC determined it would not be able to complete its investigation in the required 180 days so it issued a “Notice of Right to Sue.”

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by | March 7, 2013 · 7:18 am

Hospitality Industry Payment Risks: Hotel Tech Trade Association Releases “Secure Payments Framework For Hospitality”; Best Practices Advocates “Tokenization” And “Removal Of All Guest Credit Card Data From Systems”

Hospitality Industry Secure Payment Framework-page-001

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Hospitality Industry Secure Payment Framework Executive Summary-page-001

For more:  http://www.scmagazine.com/hotel-tech-trade-association-offers-best-practices-for-reducing-payment-card-risk/article/283129/

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by | March 4, 2013 · 7:17 am

Hospitality Industry Insurance Risks: “Slip And Fall Accidents” And “Cooking Fires” Represent Top Operational Risks For Restaurant Owners

“…more than 3 million foodservice employees are injured each year from slip-and-fall accidents. With an average cost of almost $21,000 per claim, this is a substantial risk when you consider the number of guests slip_and_fall accidentwho also fall each year in a foodservice establishment…”

Cintas Corporation, a nationwide leader in restaurant facility solutions, identified the top 13 hidden risks to restaurant operations in 2013. By identifying potential risks before they become a problem, restaurant owners and managers can reduce their exposure and maximize their bottom line by ensuring the proper programs are in place.

  • Slip and falls: According to the National Floor Safety Institute (NFSI), more than 3 million foodservice employees are injured each year from slip-and-fall accidents. With an average cost of almost $21,000 per claim, this is a substantial risk when you consider the number of guests who also fall each year in a foodservice establishment. Protect floors, workers, and patrons with a comprehensive safe-floor program that includes deep cleaning, protection, and ongoing maintenance.
  • Cooking fires: By knowing that the majority of restaurant fires occur around 10 a.m., restaurant operators can develop a fire protection system that prevents or limits the spread of cooking fires. Ensure that hood suppression systems are regularly inspected by a licensed fire protection provider so they are always in working order and ready to extinguish a fire. Also, have your kitchen hood and exhaust ducts cleaned of excess grease and fuel at regular intervals.

For more:  http://www.qsrmagazine.com/news/cintas-reveals-top-13-hidden-restaurant-risks?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+QSRmagazine+%28QSR+magazine%29

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by | March 3, 2013 · 7:40 am

Hospitality Industry Payment Risks: Restaurants Can Utilize New “Smartphone Apps” To Reduce Credit Card Fraud, Increase Guest Satisfaction

“Tabbedout” is a new free app for smartphones. The credit card number is encrypted in the phone and tied to a tab…(the guest) can walk in, open (their) tab and show the phone to TabbedOut Merchant Payment Smartphone Applicationthe bartender (or waiter) and literally start ordering food and beer right away…when they feel like leaving the venue, press one button on (the) smartphone and leave…”

Crooks are constantly stealing credit card numbers. Often times it’s skimmers attached to credit card machines or some other crafty way to lift information. Now a new app may help reduce the chances of that and simplify the dining out experience.

Denver is a test market for a new service that makes paying a tab in a restaurant or a bar as simple as just one quick click. It’s a legal way of “dining and dashing.”

Who hasn’t been frustrated while waiting to pay a tab? And how safe is sending a credit card off with a waitperson? Now there are options. “Credit card fraud is the handing the cards back and forth. Someone will snap a picture of it and then steal your identity or take your credit card,” bartender Josh Finocchiaro said. “With this, it’s set up through your phone, so the card isn’t passed back and forth.”

Restaurants like the Ice House in LoDo like it because it means the wait staff can focus on serving good food and drinks without worrying about serving up a check at the end of a meal. Diners gain more control over their experience and there’s no waiting around to pay.

Tabbedout is now in 25 restaurants around Denver and some in the mountains as well.

For more:  http://denver.cbslocal.com/2013/03/02/tabbedout-app-helps-pay-restaurant-bill-avoid-credit-theft/

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by | March 1, 2013 · 7:12 am

Hospitality Industry Legal Risks: Oregon Restaurant Chain Sued For “Forcing Minimum-Wage Employees To Cover Shortages In Cash Register”

“…Employees were required to pay kickbacks regardless of the reason for the shortage, regardless of fault and regardless of the impact of the kickback on the employee’s earnings over the pay period…those employees Hospitality Industry Wage Violation Lawsuitswere not granted any corresponding credits when the cash register had surplus funds…”

A Portland attorney is suing the state’s largest lottery retailer, alleging that it routinely violated Oregon’s minimum wage law.

Attorney Paul Breed claims that Oregon Restaurant Services Inc., which owns the lucrative Dotty’s deli chain, illegally forced minimum-wage employees to pay “kickbacks” to cover shortages in the cash register at the end of their shifts.

Under state law, tips don’t count toward the minimum wage. In fact, the Oregon Restaurant and Lodging Association has long lobbied the Legislature to allow “tip credit,” so tips could count toward the minimum wage, $8.95 an hour.

No Oregon employers are allowed to deduct money from workers’ wages to cover shortfalls in the till, no matter how much they earn, says Christie Hammond, deputy director of the state labor bureau, known as BOLI. Employers may ask workers to make payments to defray the costs of shortfalls only if they earn more than minimum wage, or the cost wouldn’t cause their wages to fall below minimum wage, Hammond says.

So what are restaurants and other retailers to do when they want to hold employees accountable for missing money in the cash register at the end of the day? Employers have other legal recourse if they think an employee is stealing from them or otherwise losing money, Hammond says. “But they shouldn’t be the judge and jury to decide if the employee is guilty of the shortage.”

For more:  http://www.koinlocal6.com/news/local/story/Lawsuit-slams-Dottys-kickback/LroqQJeb4EaClTE2VdLNaA.cspx

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by | February 28, 2013 · 7:43 am

Hospitality Industry Legal Risks: New York Restaurant And Nightclub Sued By Employee For “Significant Hearing Loss”; Music Volume At 96 Decibels

“…(the club) began offering its employees earplugs and hearing tests…it was then that she discovered her hearing loss. Initially, she said, one of the club’s executives said she could probably work at the door, but she Hospitality Industry Injury Lawsuitswas later told that would not happen. She was also charged retroactively, she said, for additional tests and treatment related to her hearing damage…”

Alexis Clemente knew the music was extraordinarily loud at Lavo, the celebrity playpen in Midtown Manhattan where she worked for two years as a hostess. Ms. Clemente had significant hearing loss in her right ear, most likely caused by noise exposure, an audiologist found. She was told to immediately stop working in loud environments to prevent it from getting worse.

After the test, she told her supervisors about the results, she said, and asked to be placed at the door, slightly removed from the din. But her employers refused, she said, failed to offer her another position, fired her and canceled her health insurance.

This week, she sued. The suit, filed in State Supreme Court in Manhattan, was reported this week by The New York Post.

She often complained about the noise, she said, but her employers did not take action until last summer, after The Times recorded and reported volumes averaging 96 decibels, akin to a power mower, in Lavo’s restaurant. Legally, workers should not be exposed to that volume for over three and a half hours without ear protection. And Lavo employees said the volumes at the downstairs club were far worse.

For more:  http://www.nytimes.com/2013/02/28/nyregion/ex-hostess-at-lavo-sues-claiming-loud-music-damaged-her-hearing.html?_r=0

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by | February 26, 2013 · 10:30 am

“Hospitality Lawyer” January-February 2013 Online Issue Features “Insurance Coverage For Food Service Industry Losses And Business Interruption”

2013 Hospitality Lawyer Jan Feb cover

Click on “Hospitality Lawyer” to view online issue

http://hospitalitylawyer.com/

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by | February 24, 2013 · 7:39 am

Hospitality Industry Insurance Risks: California Restaurant Owners Charged With “Felony Worker’s Compensation Fraud” For Failing To Insure Twelve Employees; Fines Totalling $18,000

“…an anonymous complaint (alleged) that the restaurant did not have workers’ comp insurance as required by law…following a visit to the restaurant, a civil citation (was issued) with penalties totaling $18,000 for failing workers comp fraudto insure their 12 employees…businesses not carrying valid workers’ compensation coverage are considered uninsured and face a “Stop Notice and Penalty Assessment” from the Labor Commissioner and fines of $1,500 per employee, up to $100,000. If an injury occurs, the fine increases to $10,000 per employee. A worker injured while working for an uninsured employer can sue for damages and the employer is presumed negligent in such cases…”

The owners of a restaurant in San Marcos, Calif. have been charged with felony counts of workers’ compensation fraud and forgery following a referral by the California Labor Commissioner Julie A. Su’s criminal investigation unit to the San Diego District Attorney’s Office.

The district attorney’s charges, filed in San Diego Superior Court on Jan. 29, allege that Rhythm City Grill owners John Fletcher Johnson and Annette Lucille Thomas each committed two felony counts of forgery of a workers comp insurance policy and a misdemeanor charge of conducting business without workers’ compe insurance. Johnson was also charged with an additional felony for submitting a false document to a government agency. He and Thomas were arraigned Feb. 14.

If convicted, Johnson and Thomas face up to 16 years in prison for the felony charges. The failure to secure workers’ comp insurance carries a misdemeanor charge of 1 year and a fine.

For more: http://www.insurancejournal.com/news/west/2013/02/19/281769.htm

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by | February 23, 2013 · 8:35 am

Hospitality Industry Legal Risks: New York Restaurants Now “Randomly Targeted” For Wage Violations By Labor Department; “Liquidated Damages” Can Double Back Wages Owed

“…officials at the local U.S. Department of Labor office say that in prior years, they relied on employee tips to launch investigations… the random inspections now drive as many investigations as employee Hospitality Industry Wage Violation Lawsuitscomplaints…those probes increasingly turned up egregious violations including kitchen workers being paid as little as $2 an hour…Starting in 2011, the office launched a restaurant initiative, focusing on a different segment each year. The initial focus was pizza and pasta restaurants. Last year it was diners; this year, Asian restaurants…”

The U.S. Department of Labor is targeting Long Island‘s largest private-sector employer, the restaurant industry, charging it with widespread minimum-wage and overtime violations.

The department has launched a campaign of random inspections with growing impact: In the 12 months through Sept. 30, it obtained court orders against 89 employers for such violations on the Island — about half of the roughly 180 orders obtained in all the United States by the Wage and Hour Division of the Department of Labor, according to Irv Miljoner, the Westbury-based district director for Long Island. Of the Island employers being sanctioned, 66 are restaurants.

As part of the stepped-up litigation, local Labor officials are increasingly seeking liquidated damages, which double the back wages owed. “Before this we would just go in and we would get back wages for a two-year period, and they would pay it and we’re done,” said Richard Mormile, assistant director of the Long Island office. “We have upped those consequences.”

Overall in fiscal year 2012, the office’s investigators found that local employers, mostly restaurants and diners, owed $8.6 million in back wages, up 28 percent from $6.7 million they uncovered the year before.

This year’s effort has already resulted in one of the largest settlements ever for the local office. An Asian restaurant chain with two locations on Long Island — Asian Moon, in Garden City and Massapequa Park — and a location in Westchester agreed to a court order requiring it to pay more than $1 million to settle charges that it underpaid 255 employees over three years and altered records to hide the violations. The department’s lawsuit charged that food preparers and dishwashers worked 55 hours a week without being paid overtime.

For more:  http://www.newsday.com/classifieds/jobs/u-s-labor-dept-checks-li-restaurants-for-wage-violations-1.4694410

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by | February 22, 2013 · 6:54 am

Hospitality Industry Legal Risks: Restaurant Owners Increasingly Targeted With EEOC Lawsuits Over “Family Medical Leave Act” Liability; Employees Who Use Up “Available Paid Sick Leave” Assert Disability Rights

“…Previously, if an employee had exhausted all twelve weeks of FMLA leave and any other available leave, they could be terminated without employer liability…however, the EEOC recently has taken the position that Paid Sick Leave In Hospitality Industryonce leave is exhausted under the FMLA, this can trigger an employer’s affirmative duty to provide a reasonable accommodation  to an employee’s disability, which can include providing additional leave..”

For 2013, food service employers can expect a continued aggressive approach from the Equal Empoyments Opportunity Commission (“EEOC”) as to violations of the Americans with Disabilities Act (“ADA”) in the restaurant industry.  The significant increase of ADA charges and lawsuits by the EEOC and private claimants, which began in early 2012, shows little sign of abating in the new year.

Back in 2008, Congress passed the Americans with Disabilities Act Amendment Act (“ADAAA”), which was intended to counter a series of U.S. Supreme Court decisions that significantly limited employees’ ability to assert and prevail in disability lawsuits.  Under the ADAAA, and the EEOC’s final regulations, approved in 2011, the definition of what constitutes a disability was significantly broadened.  As a result, employees who previously would not have been considered disabledEEOC under the ADA, now fall under its statutory protections.  Prior to the amended Act, employers could often prevail in litigation on the basis of whether the employee actually was considered disabled under the narrow interpretations of the Supreme Court decisions.  With the new broad definition, most cases now hinge on whether the employer reasonably accommodated the employee’s disability..

One source of increased litigation and attention from the EEOC is when the ADA intersects with the Family and Medical Leave Act (“FMLA”) as to leave for a serious medical condition.   Under this scenario, employees who were terminated after exhausting FMLA leave are asserting EEOC Charges and filing lawsuits under the ADA.  Employers are also being forced to agree to high dollar settlements with the EEOC to avoid the prospect of the federal agency filing suit on behalf of employees and former employees.

For more:  http://www.bluemaumau.org/surge_ada_disability_lawsuits_continue_2013_restaurant_and_food_service_employers_crosshairs

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