Want to prevent labor issues from becoming labor disputes? Implementing these recommendations should help limit the number and severity of such disputes and make a restaurant owner's actions more legally defensible if challenged.
At the moment, for example, there is an epidemic in Manhattan (and other locations) of restaurants being sued by employees for alleged overtime, tipping and other wage and hour violations. These lawsuits are being brought as putative class and/or collective actions, which means that the plaintiffs are seeking remedies not just for themselves, but on behalf of a group of similarly situated employees. These lawsuits create serious potential risks and liabilities because, while back pay owed to one or two employees might be small, potential back pay owed to an entire class of present and former employees may exceed six or seven figures. Accordingly, strict compliance with the applicable wage and hour laws will help you avoid such lawsuits and steer clear of unfavorable publicity that can harm your restaurant's public image.
Prohibiting unlawful harassment and discrimination at your restaurant is not only the law, it's good business. Again, harassment and discrimination claims can foster negative publicity about a restaurant, whereas a nondiscriminatory, diverse workplace can usually reduce attrition.
Implement a progressive step procedure whereby employees are advised orally and in writing concerning problems with their performance and/or conduct, and include your expectations for correction and the consequences for failure to make corrections. Of course, some misconduct, such as fighting and theft, requires immediate termination without progressive discipline. However, when used appropriately, a progressive discipline process can cause employees to correct their problems and, when improvement is not forthcoming, be used as a well-documented paper trail to defend your personnel actions if they are legally challenged.
Have a management-side employment attorney conduct an audit of your existing labor and employment practices. An audit reviews personnel practices from the application process through termination and/or retirement. A properly conducted audit can find violations, offer recommendations for correcting legal violations and provide suggestions for implementing best practices. An audit is particularly useful now in light of the many recent changes made to federal and state employment laws.
You'd be wise to provide training for supervisors and managers related to compliance with employment laws. Indeed, in some states, restaurants are legally required to provide employees with training concerning discrimination and harassment prevention. Moreover, providing training to managers and supervisors not only reduces the likelihood of employment-related problems, but the fact that the restaurant provided such training can often be used as probative evidence in defense of a claim of harassment and/or discrimination.
Updated policies relating to at-will employment, antidiscrimination, antiretaliation, antiharassment and other subjects are important to have in writing and distributed to employees. A well-written handbook can help avoid employment-related legal claims and, if such claims are made, can sometimes be used as evidence.
Michael Weber is the senior shareholder and founder of the New York office of Littler Mendelson (www.littler.com), the nation's largest employment and labor law firm representing employers.