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Tablecraft 119A Single Rangette w/ Chrome Plated Finish, 1500W/120V

Metro 1848PES Polymer Shelving, 18 x 48 in, Blue

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Metro C519-CFC-L C5 Full Height Heated Proof & Hold Cabinet, Clear Door, Lip Load Slides

Metro BC20302DBU BC Series Deep Ledge Utility Cart w/ Casters & 2 Shelves , Blue

Day To Day Issues For The Restaurant Owner: What Does The Law Really Say?

by Carolyn D. Richmond, Esq.

This month, rather than focus on one topic, I decided to answer some of the questions I am most often asked by restaurateurs. Below are some common issues that might save you time and money if followed correctly.

Can a Restaurant require its employees to wear a Uniform?

Yes. However, the cost of purchasing and/or maintaining a uniform must not bring the employee below the minimum wage. If workers at the minimum wage rate (NY $6.00/3.85) must wear a uniform, their employers must clean and maintain them or pay the employees to do so. For those of you who require your wait staff to wear ordinary clothing such as black or white shirts and black trousers, you do not have to pay for the "uniform" as it is considered ordinary clothing under law.

How many hours can I ask my restaurant employees to work in a week?

In most industries in New York there is no limit, except for children under 18. There are also no restrictions on how early in the morning, or how late in the evening, an adult employee may work. However, in industries such as hotels, and restaurants (except resort/seasonal hotels and small, rural restaurants), hourly employees must receive 24 hours of rest within each calendar week.

Do employees have to get meal breaks, cigarette breaks and coffee breaks?

These issues often produce some of the biggest groans. So let me start with the easiest ones first. New York and federal law do not require any employer to give coffee breaks or cigarette breaks (if you have a union contract, it may provide differently). However, the meal break in New York is a different story. New York law still requires that an unpaid meal break of at least half an hour be provided to any employee who work a shift of more than six hours starting before 11 A.M. and continuing until 2 P.M. Every person employed for a period or shift starting before 11 AM and continuing later than 7 PM shall be allowed an additional meal period of at least twenty minutes between 5 PM and 7 PM in the evening. Every person employed for a period or shift of more than 6 hours starting between the hours of 1 PM and 6 AM, shall be allowed at least 45 minutes for a meal period, at a time midway between the beginning and end of such employment.

Does a restaurateur have to pay for holiday, sick or vacation days?

No. Neither New York State or Federal law requires an employer to pay its employees such payment for "time not worked"-unless the employer has an established policy to grant such pay. However, from an employee relations perspective, an employer may want to think about not granting such fringe benefits as the downside is often increased turnover and increased training costs.

When is the final paycheck due to a terminated employee?

Whether the employee quits or is terminated by the employer, the final paycheck must be paid by the regular payday for the pay period worked. If requested, the employer must mail the final wages to the employee. It is not a good idea for an employer to hold up the final paycheck because certain equipment like a cell phone or uniform was not turned in. Pushing an ex-employee towards filing a claim with the Department of Labor may do more harm than good.

Am I required to provide my employees with a leave of absence?

Neither New York State nor Federal Law requires an employer to provide an employee with a general "leave of absence." From time to time, restaurant employees request time off to go back to school, pursue a career in the arts, visit family out of town members, or just "take a break". The law does not require you to hold their job open. However, the federal Family and Medical Leave Act ("FMLA") may require an employer to provide up to 12 weeks of unpaid leave off and guarantee the employee his/her original or equivalent job with the same benefits and other terms and conditions of employment. The FMLA will apply in the following situations: (1) the employer must have more than 50 employees working within a 75 mile radius; (2) the employee must have worked for that employer for more than 1 year; (3) the employee must have worked more than 1,250 hours in the proceeding 1 hour for that employer. If all four of the preceding requirements are met, the employee may be eligible for an FMLA leave. FMLA is only available for the following situations: (1) for the birth and care of the newborn child of the employee; (2) for placement with the employee of a son or daughter for adoption or foster care; (3) to care for an immediate family member (spouse, child, or parent) with a serious health condition; or (4) to take medical leave when the employee is unable to work because of a serious health condition. Remember, if you operate restaurants in other states, such as Connecticut, New Jersey or California, there are also specific state family and medical leave provisions that you need to provide for as well.

Is an employer required to provide sexual harassment avoidance training to its workforce?

At the present time, neither federal nor New York law mandate that employers train their managers or non-supervisory employees in sexual harassment avoidance or general anti-discrimination conduct. However, with the number of discrimination charges against hospitality employers increasing, it is more than simply good practice for employers to train their management staff. Proper management training is an essential defense to any lawsuit or agency charge of sexual or other unlawful harassment. In addition to training, courts and investigating agencies such as the Equal Employment Opportunity Commission, look to see if employers have properly distributed and enforced anti-discrimination and harassment policies to their entire workforce-both in English and in foreign languages if necessary. Restaurateurs should prepare in advance as many defenses or preventative measures as they can. While you may not always be able to avoid being named in a lawsuit, you can go a long way towards limiting your exposure, by preparing in advance. Annual workforce training, employee handbooks with detailed harassment, retaliation and reporting policies, employee relations hotlines and an open-door policy are a few examples of steps that an employer should take.

One final note, if you operate a restaurant in another state, you should speak to counsel about the laws there. For instance, California recently passed a law that requires employers with more than 50 employees to provide sexual harassment training to all supervisors once every two years.

If you have suggestions for future employment or labor law topics that you would like to see discussed in this column please contact Ms. Richmond at or (212) 218-5284. Carolyn D. Richmond practices labor and employment law with the national law firm of Seyfarth Shaw, LLP. Carolyn D. Richmond practices labor and employment law with the national law firm of Seyfarth Shaw, LLP.

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