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The Hiring Process: Why it's more dangerous than you think

By Carolyn D. Richmond

Crunch time. Cafe season hit you like a ton of bricks.

Two days ago it was snowing and 29 degrees. Now, the temperature has soared to 75. You can open your sidewalk cafes and patio dining. That also means hiring one-third of your staff ASAP! Your management team better be prepared. What a restaurant does even before an applicant is hired implicates future legal liability. That is why it is imperative that the hiring process be routinized and consistently followed. Unfortunately, in today's litigious world restaurant operators are being hit with employment discrimination lawsuits at an alarming rate. These claims arise not just from current employees but from applicants as well. However, by shoring up hiring processes, restaurateurs can build better defenses to withstand lawsuits later on. Also, from an operations standpoint, a smoother hiring process will lead to more productive new hires. This article will highlight key areas of the hiring process that operators need to stay on top of.


Unfortunately, area newspapers and websites are filled with restaurateurs requiring potential hostesses and servers to email "photos" first. This practice is generally taboo. While not illegal per se, it poses serious liability for the employer and may catch the eye of a government agency or rights-group trolling the want ads. By asking to see an applicant's photo, the employer can potentially rule out candidates based on legally protected characteristics such as race, age, disability, gender or national origin. Such characteristics have nothing to do with job skills. Accordingly, such an advertiser who routinely rejects all "old" looking applicants may be looking at a serious age discrimination suit. When placing a job advertisement, restaurateurs should be clear about the legitimate job requirements and/or when a job fair may be held. Employers should be very careful that they are able to back up their decision with legitimate business reasons. Simply put, do not weed out employees based on protected characteristics such as age, religion, race or national origin.

New Hire Paperwork

Paperwork. To many, it is the bane of our existence. When it is done correctly it can keep a lot of problems at bay. However, if not filled out or done only partially, it has the potential to create a legal nightmare. Often, restaurants have a "checklist" of some sort that managers fill out that lists the types of documents that need to be completed before an employee can begin. For instance, the form may cover immigration I-9 forms, the Employee Handbook, W-2 forms, uniforms, safety policies, security keys and emergency procedures. It is important to go through this checklist and make sure everything that should be provided was "checked". Remember, if for some reason this particular employee ends up involved in a workers compensation suit or sues you for discrimination, you don't want this employee's paperwork to be incomplete, thus creating more liability. Too often it is the employee who ends up suing the restaurant who never received the employee handbook (containing the sexual harassment policy) or filled out the I-9 form. Or, even worse, it is the litigious employee who did receive the handbook and sat through harassment training but the manager never checked it off on the list or collected the handbook receipt. Checklists are there for a reason-use them.


The employee interview can be an employee relations and legal landmine. Make sure your managers never use it as a dating pool. Managers should be properly trained on how to conduct an employee interview. First, everyone in the restaurant should be aware of when advertisements have been placed and for what positions. Do not be caught rejecting applicants who are responding to posted ads for which they are qualified. Hosts and day managers should have copies of all ads.

Interviewing Do's

  • Look for experience and longevity in positions.
  • Question applicants about gaps in employment.
  • Describe the job in detail to the applicant-let them know about required overtime, weekends and late nights.
  • Question applicants about why they left previous jobs.

    Interviewing Don'ts:

  • Do not write down notes describing their physical appearance, i.e. skin color, age or possible national origin.
  • Arrest record
  • Physical or mental health
  • Age
  • National origin
  • Height and weight
  • Personal workers' compensation history
  • Marital status or whether they have kids
  • Dating history or family life
  • Sexual preference

The job interview should focus on the applicant's skill set and experience, the restaurant and the environment. Remember, applicants can sue an employer for "failure to hire" based on discrimination-so do not set yourself up. Select the best skilled candidate. I know at this point many of you are wondering why don't we just invite them in to "trail"? You can, but the law says you have to pay them.

The Offer

You may be anxious to get that new server or bartender hired and on the schedule. However, an ounce of prevention really is worth a pound of cure. Do your due diligence. Check references! While most employers only confirm dates of employment, salary and last position held (and that policy will help avoid defamation claims), you will be amazed at what information some employers will tell you. If your restaurant does more thorough background checks, make sure you consistently do them for all relevant job categories. For instance, if you do credit checks for those employees purchasing liquor or handling cash receipts, make sure that you are in compliance with the Fair Credit Reporting Act and getting the proper authorizations signed (a topic for another column). If everything pans out, make the offer. Remember, "at-will" is the rule in New York. Therefore, never promise an employee lifetime or even seasonal employment. "At will" means that the employer or employee can end the relationship at anytime for any reason, with or without notice (as long as the employer's reason is not discriminatory or otherwise illegal). It is always good practice to make sure your employment application and handbook have good "at will" disclaimers on them. If the applicant accepts your offer, congratulations. Move on to the start date. Only after the employee starts can the I-9 form be filled out. However, make sure the I-9 forms are properly filled out for every employee and filled out properly. In case of an audit, just forgetting to fill out a box on the I-9 form could cost an employer a minimum $500 penalty! Payroll paperwork should also be filled out carefully. It is simply not worth a Wage and Hour investigation and related penalties. Now your new employee is ready to train.

Carolyn D. Richmond, Esq. is a labor and employment attorney specializing in the hospitality industry. She is Of Ccounsel in the Labor and Employment group at Seyfarth Shaw, LLP and former General Counsel for BR Guest Restaurants and James Hotels. For further information concerning any of the issues discussed in this article, she can be reached at

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