The New York City Bar Association will hold the CLE program “Opening A Restaurant in New York: Legal Issue Boot Camp” on March 24. The program will focus on the corporate, real estate, liquor license, and labor/employment issues involved in opening a restaurant in New York City. Speakers on the panel include Jack Gordon, partner at Kent, Beatty & Gordon LLP; Carolyn Richmond, partner at Fox Rothschild LLP; Sonal Shah, General Counsel of Ark Restaurant Group; Alex Victor, partner at Davidoff, Hutcher & Citron LLP; and Larry A. Welch, Associate at Golenbock Eiseman Assor Bell & Peskoe LLP. Lou Pechman will be chairing the event. For more information on the program please visit the event page.
On December 31, 2016, restaurant workers throughout New York State will begin to see changes in the payment structure of their wages.
Back of the House Workers
Back of the house workers (cooks, dishwashers, stockers, and others without direct customer contact) will receive an increase from the current minimum wage rate of $9.00/hour beginning December 31, 2016, according to the following specifications:
|New York City – Large Employers (with 11 or more employees):||$11.00|
|New York City – Small Employers (with 10 or fewer employees):||$10.50|
|Long Island & Westchester:||$10.00|
|Remainder of New York State:||$9.70|
Front of the House Workers
New York State law allows employers in all industries, except building service and fast food, to satisfy payment of the minimum wage by combining a “cash wage” paid by the employer with a credit or allowance for tips that the employee receives from customers. For example, employers in the Hospitality Industry could satisfy the 2016 minimum wage of $9.00 by combining a cash wage of at least $7.50 with a tip allowance of no less than $1.50 per hour. Employers need only pay a cash wage of $7.50/hour to workers, so long as the employees receive at least $1.50/hour from customers in tips.
Beginning on December 31, 2016, tipped front of the house restaurant workers (servers, bussers, bartenders, hosts, hostesses, and others with direct customer contact) will still be required to receive the same 2016 minimum hourly wage rate of $7.50/hour from their employers. However, as of December 31, 2016, tipped restaurant workers must receive at least the following amount in tips per hour in order for employers to use the tip credit:
|New York City – Large Employers (with 11 or more employees):||$3.50|
|New York City – Small Employers (with 10 or fewer employees):||$3.00|
|Long Island & Westchester:||$2.50|
|Remainder of New York State:||$2.20|
Fast Food Workers
Additionally, restaurant workers in the fast food industry will see an increase in hourly wage rates. Employees who qualify for this increase include any person working at a fast food establishment whose job duties include at least one of the following: customer service, cooking, food or drink preparation, delivery, security, stocking supplies or equipment, cleaning, or routine maintenance.
On December 31, 2016, the minimum hourly wage rates for all fast food workers will increase according to the following specifications:
|New York City:||$12.00|
|Rest of the State:||$10.75|
For more information about your rights as a restaurant worker, take a look at our Top 10 Restaurant Pay Violations.
Bayou City Wings, a Houston-based restaurant chain, has unlawfully engaged in a pattern or practice of intentional age discrimination in its hiring of host and wait staff, according to a lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC).
EEOC’s lawsuit said that since at least 2008, Bayou City Wings has been discriminating against a class of applicants for “front of house” positions, such as food servers and hosts, by failing to hire them because of their age (40 years and older). According to EEOC’s lawsuit, Bayou City Wings’ upper management instructed other managers not to recruit and hire older job seekers and disciplined and terminated a manager who refused to comply. The agency also charged that since at least 2008 to about November 2013, the company failed to preserve employment records, including the job applications of unsuccessful applicants, in violation of federal law.
Age discrimination, as well as the failure to preserve proper job application records, violates the Age Discrimination in Employment Act (ADEA).
EEOC filed the lawsuit (Civil Action No. 4:16-cv-03245) in U.S. District Court for the Southern District of Texas (Houston Division), after first attempting to reach a pre-litigation settlement through its conciliation process. EEOC seeks, among other things, monetary relief for applicants denied employment because of their age; the adoption of policies and procedures to remedy and prevent age discrimination; and training on discrimination for all Bayou City Wings managers and human resources staff.
“Sadly, age discrimination continues to be an employment barrier for many Americans,” said Rayford O. Irvin, district director of EEOC’s Houston office. “Denying jobs to qualified applicants who are over 40 because of their age is unlawful, yet older job applicants often do not know they are victims of this unlawful discrimination.”
A Texas Roadhouse restaurant in Columbus, Ohio will pay $1.4 million to settle a class sexual harassment suit filed by the U.S. Equal Employment Opportunity Commission (EEOC). EEOC had charged the restaurant with victimizing a group of female employees as young as 17 years old by subjecting them to sexual harassment and then retaliating against them for complaining.
According to EEOC’s lawsuit, the manager of the restaurant in the Reynoldsburg section of Columbus, Eric Price, harassed women and teen girls working in server, hostess and other front-of-the-house positions. In the suit, EEOC identified 12 victims of his abuse who suffered unwelcome touching, humiliating remarks about their and other females’ bodies and sexuality, and pressure for sexual favors in exchange for employment benefits or as a condition of avoiding adverse employment action. EEOC charged that the harassment began in 2007, continued for over three and a half years until the manager was fired in May 2011, and was coupled with retaliation against employees who opposed the abuse.
Although the companies’ owners and individuals with high-level authority received multiple complaints about the manager’s abusive conduct throughout his employment, they failed to take prompt, effective action to put a stop to the abuse, EEOC said. Price was not fired until May 2011, when he was seen on a surveillance video touching a 17-year-old female employee in his office at the restaurant during work hours, the agency charged.
Harassment and discrimination based on sex violate Title VII of the Civil Rights Act of 1964. Title VII also forbids employers from firing or otherwise retaliating against an employee because she complained about discriminatory conduct. EEOC filed suit (EEOC v. East Columbus Host, LLC d/b/a Texas Roadhouse and Ultra Steak, Inc., Civil Action No. 2:14-cv-1696) in U.S. District Court for the Southern District of Ohio, Eastern Division, after first attempting to reach a pre-litigation settlement through its conciliation process.
On Sept. 2, U.S. District Court Judge James L. Graham issued an order denying East Columbus Host and Ultra Steak’s motion for summary judgment on EEOC’s sexual harassment claims. He found that EEOC had presented sufficient evidence to overcome the motion. In rejecting the employers’ argument that they had established an affirmative defense because some of Price’s victims allegedly delayed or failed to complain, Judge Graham held that questions remained regarding the companies’ efforts to stop any sexually harassing behavior.
Referring to evidence that previous complaints had been made against the restaurant manager, the court noted that EEOC had described a pattern of complaints, including evidence that “less than a month into his tenure, Price made sexual remarks to … [a] high school-aged hostess … [who] did complain, and the only response she got was not from the corporate office, but from the very person she feared: Eric Price,” who told her “not to get other people involved if she had a problem.” A jury, Judge Graham held, “could see this as the first failure in a long line of tepid responses in the face of near-constant complaints, bookended by sexual harassment of teenage girls.” The court also rejected the defendants’ argument that EEOC had failed to conciliate its claims against them as required by Title VII.
In addition to the $1.4 million in monetary relief to the victims, the five-year consent decree resolving the lawsuit requires the companies to offer reinstatement to injured women identified by EEOC in agreed locations and positions. The decree prohibits the companies from rehiring the offending manager.
The decree further requires East Columbus Host and Ultra Steak to put in place an electronic recordkeeping system to track all gender discrimination and retaliation complaints of any kind and includes mandatory reporting of any allegedly discriminatory or retaliatory adverse employment action, such as failure to hire or promote.
Further, the companies must provide training to all employees on discrimination and retaliation. Supervisory, management, and human resources personnel are to be trained on their duty to monitor the work environment; how to receive and investigate complaints of harassment or discrimination; and how to respond to complaints effectively with corrective action. East Columbus Host and Ultra Steak also are required to report to EEOC on how they handle any internal complaints of gender discrimination or retaliation, and they must post a notice about the settlement at all restaurants covered by the decree.
EEOC recently updated its [email protected] website (at http://www.eeoc.gov/youth/), which presents information for teens and other young workers about employment discrimination. The website also contains curriculum guides for students and teachers and videos to help young workers learn about their rights and responsibilities in the workforce.
Today is National Waiters and Waitresses Day. To commemorate, check out this blog about the top ten wage violations in the restaurant industry written by waiterpay.com founder Louis Pechman, featured on the Huffington Post.
Three sisters who were subjected to sexual harassment at Ayhan’s Fish Kebab Restaurant on Long Island are entitled to damages, according to a decision by New York federal court judge William F. Kuntz. The lawsuit against Ayhan’s was brought by three hostesses, all sisters, who were subjected to “appalling sexual abuse” at the restaurant.
Judge Kuntz found that there were numerous incidents of sex harassment at the restaurant, including male employees making lewd remarks to the women and touching their arms, legs and buttocks. In the most flagrant example of harassment, one of the sisters was grabbed in a bear hug in July 2008 by a cook who groped her. The cook halted the attack when a busboy came down to the basement. In October 2008, the cook was convicted of felony attempted sexual abuse, served 4 months in jail and was deported.
Louis Pechman, the founder of Waiterpay, was a featured guest on BK Live’s June 2, 2014 segment on Tipped Wages. The segment focused on pay issues in New York City restaurants, including concerns about the increase in lawsuits for illegal pay practices. Among the topics discussed were the differences between minimum wage and tipped minimum wage, the complicated set of laws involving the tip credit, spread of hours, and other worker rights issues.
TGI Friday’s was hit with a lawsuit by its servers for violations of state and federal wage payment laws. According to the lawyers for the workers, which include current and former servers, bussers, runners, bartenders, barbacks, hosts, and other tipped workers, the restaurant chain faces a national class action lawsuit as a result of the alleged violations of workers’ rights.
The Complaint, which was filed in federal court by four former TGI Friday’s workers from the New York metro area, alleges that the restaurant required tipped workers to arrive at work before their scheduled start time and to stay at work after the restaurant closed without receiving the minimum wages and overtime to which they were entitled under the Fair Labor Standards Act (FLSA) and New York Labor Law (NYLL).
In addition, the workers allege that the restaurant shaved hours from employee time records and allowed employees to work off-the-clock to perform side work such as cleaning the restaurant, preparing food in bulk for customers, cutting produce, refilling condiments, and stocking and replenishing the bar and service areas.
The lawsuit seeks to recover minimum wages, overtime compensation, spread-of-hours pay, misappropriated tips, uniform-related expenses, unlawful deductions, and other wages for current and former workers at TGI Friday’s restaurants throughout the nation owned and/or operated by Carrollton, Texas-based Carlson Restaurants Inc., Carlson Restaurants Worldwide Inc., and TGI Friday’s Inc. nationwide.
Restaurant Opportunities Center (ROC), a restaurant worker rights advocacy group has been accused of misconduct. In an opinion piece published in the New York Post, Mike Paranzing accused the ROC of being a labor union front that doesn’t practice what it preaches. Acccording to Paranzing, ROC exploited its own workers and cheated its employees at the restaurant Colors, and is guilty of the same labor abuses and health violations that it has leveled against other restaurants.
There is a hiring boom of part-time workers in the restaurant industry as a result of a new federal law requiring certain employers to provide health insurance to its workers, according to a recent article in the Wall Street Journal.
A recent report conducted by the United States Department of Labor, leisure and hospitality businesses have hired more workers in June than any other industry and, since April, restaurants and bars have added an average of 50,000 jobs a month. But, in response to the Affordable Care Act, a growing number of restaurants are adding part-time workers rather than traditional full-time.
The Affordable Care Act (“ACA”) requires employers with 50 or more full-time employees to offer affordable insurance to employees who work 30 or more hours a week. In an effort to circumvent the costs of the ACA, restaurants and other businesses have increased their staff by hiring more part-time employees to replace full-time workers who have left. Others attribute the increase of part-time workers in the restaurant industry to a stronger economy. Still, some restaurants say that they will continue to rely on part-time workers in order to minimize health care costs.