Ensuring a Lawful Workplace

1. Ensuring a Lawful Workplace • Hospitality Human Resources Management and Supervision 8 OH 11-1

2. Learning ObjectivesAfter completing this chapter, you should be able to: • Explain the impact of laws that affect restaurant and foodservice operations. • Explain the federal employment laws that affect establishments. • Describe the state and local laws that regulate restaurant and foodservice operations. • Describe the legal aspects of serving safe food.

3. Learning ObjectivesAfter completing this chapter, you should be able to: • Review the legal aspects of serving alcoholic beverages. • Identify the procedures that should be followed to protect the operation from legal actions. • Explain how restaurant and foodservice operations should interact with unions.

4. Employment Cycle Laws impact every area of the employment cycle.

5. Management Concerns Impacted by Laws Federal, state, and/or local laws impact each of these areas, and managers must know and consistently follow all laws applicable to their operations. • Sanitation and alcohol service • Scheduling and work assignments • Workplace safety • Union relations • Wages and payroll • Employee benefits

6. Federal Laws • Equal Employment Opportunity Commission (EEOC) • Federal agency that enforces employment discrimination laws related to age, sex, race, national origin, disability, creed, and religion. • Discrimination is the unjust or prejudicial treatment of person based on protected classes. Protected class is a group that lawmakers specifically protect from discrimination. • It is illegal to discriminate against a person because he or she complains about or files a charge of discrimination or participates in a discrimination investigation or lawsuit.

7. Race Color Religion Sex National origin Age (forty or over) Disability Military service Pregnancy Citizenship Federally Protected Personal Characteristics

8. Laws Enforced by EEOC • Title VII of the Civil Rights Act of 1964 • It is illegal to discriminate against someone on the basis of: • Race • Color • Religion • National origin • Sex • Genetic Information Nondiscrimination Act (GINA) of 2008 • Protects Americans against discrimination bases on their genetic information when it comes to health insurance and employment

9. Laws Enforced by EEOC Pregnancy Discrimination Act amended Title VII to make it illegal to discriminate against a woman because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth.

10. Laws Enforced by EEOC • Equal Pay Act of 1963 • It is illegal to pay different wages to men and women if they perform equal work in the same workplace. • All forms of pay are covered by this law, including salary, overtime pay, bonuses, stock options, profit sharing and bonus plans, life insurance and vacation and holiday pay. • The time limit for filing a charge with the EEOC must be within two years of the alleged unlawful compensation practice.

11. Laws Enforced by EEOC • The Age Discrimination in Employment Act (ADEA) of 1967 • Protects people who are 40 years of age or older from discrimination because of age. • Title I of the American with Disabilities Act (ADA) of 1990 • Persons with covered disabilities cannot be discriminated against in the workplace when the disabled applicant/employee can perform essential job functions with or without reasonable accommodation.

12. Laws Enforced by EEOC • ADA continued • The ADA also requires that disabled people, including customers, have equal access to buildings and public services. • ADA is applicable to employers with fifteen or more employees on each workday during twenty or more weeks in the current or previous year. • Major life activities under the ADA: Walking, Seeing, Hearing, Breathing, Sitting, Standing, Lifting, Learning, Thinking, Caring for oneself, Performing manual tasks, Interacting with others

13. Laws Enforced by EEOC Persons covered by ADA • Have a physical or mental impairment that substantially limits one or more major life activities • Have a record of the impairment. • May be regarded as having an impairment. • An employee must only meet one of the above conditions to be considered disabled (listed on the previous slide) • Temporary impairments caused by alcoholism and illegal drug use are not covered by ADA.

14. Federal Laws Administered by theDepartment of Labor • Uniformed Services Employment and Reemployment Right Act (USERRA) • Prohibits discrimination against people who serve or have served in the Armed Forces Reserve, National Guard or other uniformed services. • Protects the right of veterans to return to their civilian jobs after being away for military service or training.

15. Federal Laws Administered by theDepartment of Labor • Immigration Reform and Control Act (IRCA) of 1986 • It is illegal for an employer to discriminate with respect to hiring, firing, or recruitment or referral for a fee, based on an individual’s citizenship or immigration status. • Prohibits employers from hiring only US citizens • i9 Form 2013.pdf

16. Managers Responsibility • Discrimination is not allowed at any stage of the employment cycle: • Job advertisement • Recruitment • Pre-employment inquires • Application and hiring • Terms and conditions of employment

17. Managers Responsibility continued • Discrimination against protected classes is not allowed after an applicant has been selected: • Job assignments and promotions • Pay and benefits • Discipline and discharge • Reasonable accommodation and disability • Training and apprenticeship programs • Employment references

18. Harassment and the EEOC • Harassment is unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability, or genetic information. • The most common type of harassment is sexual harassment.

19. Harassment and the EEOC continued • To rise to the level of harassment, the conduct must: • Be unwelcome • Be frequent, severe, or pervasive • Interfere with or create a hostile or offensive work environment or result is an adverse employment decision • Sexual harassment has been illegal since 1965

20. Harassment and the EEOC continued • Hostile work environments may include the following: • Posting sexually suggestive pictures in employee work areas • Telling sexual jokes or stories that employees in the work area can hear • Sexually suggestive remarks within earshot of coworkers • Allowing peer employees, customers, suppliers, or any other person to persist in unwanted attention • Allowing the use of derogatory terms with sexual connotation to describe coworkers • Allowing frequent physical contact even when it is not sexual • Rules apply to other protected categories

21. Other Federal Employment Laws • The Fair Labor Standards Act (FLSA) of 1938 establishes minimum wage for covered non-exempt workers, overtime pay, record keeping, and child labor standardswith exceptions for: • Tipped employees minimum wage • Youth minimum wage • Subminimum wage • The Wage and Hour division (WHD) of the U.S. Department of Labor (DOL) administers and enforces the FLSA. http://www.dol.gov/whd/minwage/chart.htm

22. Job Restrictions for Youth Applicable laws require that these young workers be protected while they are working at the restaurant.

23. Other Federal Employment Laws • The Fair Labor Standards Act (FLSA) continued • Youths who are fourteen and fifteen years old can work in front-of-house positions and the following schedules: • Non-school hours • Three hours on a school day • Eighteen hours in a school week • Eight hours on a non-school day • Forty hours in a non-school week • Between 7 am – 7 pm, except from June 1 through Labor Day, when nighttime work hours are extended to 9 pm • Generally, youths aged sixteen and seventeen can work in front-of-house positions, but are restricted in back-of-house positions. • It is the managers responsibility to know the state and local laws regulations • Chapter 8 resources - new\NE labor laws.pdf

24. Other Federal Employment Laws continued Applicable labor laws require, and employees usually need, breaks from their work.

25. Other Federal Employment Laws continued • The Fair Labor Standards Act (FLSA) continued • Most state labor laws require employers to give employees breaks after working a specified time. • Breaks allow employees a period of rest, and show that employers care about and respect employees’ needs. • A common industry arrangement for breaks is • Fifteen-minute break for every four hours of work. • Thirty-minute break for a six-hour shift. • Two fifteen-minute breaks and a thirty-minute meal break for an eight-hour shift.

26. Other Federal Employment Laws continued • Occupational Safety and Health Act of 1970 • Created the Occupational Safety and Health Administration (OSHA): • Mission to help businesses protect their workers by reducing deaths, injuries, and illnesses in the workplace • In turn reduces workers’ compensation insurance costs and medical expenses, decreases costs of return-to-work programs, and lowers accommodation costs for injured workers.

27. Other Federal Employment Laws continued • OSHA strategies: • Ensures OSHA regulations are followed • Safety training • Promotes safety systems, workplace inspections, and rights and responsibilities of employees and employers • Establishes record-keeping and reporting requirements

28. Other Federal Employment Laws continued • Family Medical Leave Act (FLMA) • Applies if your business employs over 50 employees within 75 miles of workplace and at least 50 employees work 20 or more work weeks in year • Entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons. • During this time, group health insurance coverage is continued under the same terms and conditions as if the employee had not taken leave • Eligible employees are entitled to 12 work weeks of leave in a 12 month period.

29. Other Federal Employment Laws continued • Family Medical Leave Act (FLMA) continued • Approved reasons for requesting FLMA • Birth of a child and to care for the newborn child within one year of birth • Placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement • To care for the employee’s spouse, child, or parent who has a serious health condition • A serious health condition that makes the employee unable to perform the essential functions of the job

30. Other Federal Employment Laws continued • Worker Adjustment and Retraining Notification Act (WARN) 1988 • Offers protection to workers, their families, and communities by requiring employers to provide notice 60 days in advance of covered plant closings and covered mass layoffs. • Private, for profit employers are covered by WARN if they have 100 or more employees • Hourly, salaried workers, managerial and supervisory employees are included.

31. Other Federal Employment Laws continued • Employee Polygraph Protection Act 1988 • Prevents employers from using lie detectors tests, either for pre-employment screening or during the course of employment, with certain exemptions: • Employers may not require or request any employee or applicant to take a lie detector test or discharge, discipline, or discriminate against an employee or applicant for refusing a test or exercising other rights under the act. • Employers are required to display the EPPA poster in the workplace.

32. Other Federal Requirements. • Some operations may be governed by special EEO requirements: • Organizations that contract with the federal government • Organizations that provide services or supplies as subcontractors to a business that contracts with the government. • Organizations that accept federal grants or funds, such as schools and hospitals

33. Other Federal Requirements. • Executive Orders (EOs) • Proclamations issued by the president of the United States with implementing regulations issued by federal agencies such as the U.S. Department of Labor. • EEO – 1 Report • Employers subject to Title VII of the Civil Rights Act of 1964 must complete an annual EEO-1 report that provides information about the race, sex, and job category of their employees • The report must be submitted by some companies with fewer employees and by nonexempt federal contractors with 50 or more employees who have contracts of $50,000 or more.

34. Other Federal Requirements. • Affirmative Action Plan (AAP) • Establishes guidelines for recruiting, hiring, and promoting women, qualified minorities, persons with disabilities, and covered veterans to eliminate the present effects of past employment discrimination. • If, after analyzing current practices and the makeup of its workforce, there is an indication that women and minorities are excluded or disadvantaged, problem are to be identified and new or different policies and practices must be developed to address them and measure progress. • Contractors with 50+ employees must prepare and maintain an A.A.P. plan within 120 days of commencement of a contract.

35. Other Federal Requirements. • VETS-100 Form • The Federal Contractor Program requires that any contractor receiving a contract from the federal government of $25,000 or more, or any subcontractor receiving a contract of $25,000 or more from a covered contractor, must file an annual VETS-100 report. • This report indicates the number of special disabled, Vietnam-era, and other protected veterans that are employed and the number hired during the reporting period.

36. Other Federal Requirements. • Completion of Required Government Forms • All solicited and unsolicited job applications must be kept for 12 months for an affirmative action plan • Local municipalities or states may have their own document retention policies • Knowledge of the records to be obtains is very important. • Most federally required forms are related to workforce planning

37. State and Local Employment Laws • Managers must be familiar with the laws that apply to their location. • If both federal and state laws apply, the law most favorable to employees must be followed. • Managers want to promote positive behaviors and nurture an environment that recognizes differences and treats everyone appropriately at all times.

38. State and Local Employment Laws • Workers Compensation • System that states use to compensate employees when they are injured at work. • Regardless of who caused the injury, the workers compensation system generally compensates the employee for medical costs, lost wages, and other losses. • The injury or illness must have occurred in the course of employment for the system to provide benefits • Punitive damages are not available to an employee for injuries covered by workers compensation. • The employer cannot claim the operation should not have to pay because the employee caused their own accident.

39. Workers Compensation continued • Managers should investigate the causes of workers’ compensation claims. • The process should begin by providing appropriate medical attention, and then completing an injury and illness incident report. • The first report of injury form should be completed in cooperation with the third party administrator (TPA). The TPA is the insurance claims adjuster or an organization that manages insurance claims for a self-insured organization. On going communication must be maintained throughout the process.

40. Workers Compensation continued

41. Workers Compensation continued • The cause of the accident should be determined. Was there an unsafe condition or unsafe action or both? All information should be gathered, including photos. • A file should be created to keep all information, notes and documentation regarding the accident and the claim. This information should be kept in a secure location. • A corrective action plan should be developed to prevent reoccurrence. • All claims should be reviewed for accuracy and any inconsistencies.

42. Workers Compensation continued • Determine if lost time or modified duty are required. Managers should follow directions of the TPA and keep in contact with the employee. • If lost time, compensation paid is generally a percentage of weekly wages until the worker returns to the job. • If modified duty, knowledge of work restrictions is necessary, and a return to work authorization from the physician will be required. • If notice is received that the employee is litigating, or taking the claim to court, this information must be reported to the TPA. The next step may be a hearing.

43. Unemployment Insurance • The federal-state employment insurance program provides benefits to workers who are unemployed through no fault of their own as determined by state law. • The amount of compensation received depends on the amount an employee earned while working during an established period of time referred to as a base period. • There are eligibility requirements to qualify, including the need to work a certain number of weeks.

44. Unemployment Insurance • Unemployment insurance payments are intended to provide temporary financial assistance to unemployed workers who meet requirements. • Each state administers a separate program within guidelines established by federal law. In almost all states, benefit funding is based on a tax imposed on employers. • Those receiving unemployment insurance benefits must file weekly or biweekly claims and respond to questions about continued eligibility. They must also report any earnings and any job offers or refusals of work. • Benefits can be paid for a maximum of 26 weeks in most states. Benefits are subject to federal income taxes and must be reported on the employees’ federal income tax retrun.

45. Local Licenses and Permits • Managers must ensure that they apply for all required local licenses and permits on a timely basis. • The concept of the business determines the type of licenses and permits required; including proper zoning. A zoning ordinance is a legal declaration of land use policies for a city, district, or county that indicates for what purposes specific land areas can be used.

46. Local Licenses and Permits continued • Some licenses or permits may require inspections or review by other government entities, such as the fire department. • After receiving all permits and applications, managers will need to take any actions required by ‘conditional approval”

47. Providing Safe Food • A manager has no more important responsibility than to serve customers safe food and to train employees in safe food handling practices. • Safe food handling helps an operation avoid foodborne illnesses. • Serving safe food helps comply with health codes, which are local laws designed to ensure food safety.

48. Providing Safe Food continued

49. Food Sanitation Laws • Federal level • The U.S. Department of Agriculture (USDA) and Food and Drug Administration (FDA) are involved in the food inspection process. • FDA writes the food code that provides recommendations about regulations to prevent foodborne illnesses. • State and local regulations are based on the food code, but can be adopted and interpreted differently.

50. Food Sanitation Laws • Most food codes contain provisions for: • Food safety • Personal hygiene • Sanitary facilities • Equipment and utensils • Safe operating practices • Training • Enforcement procedures