The federal government’s National Transportation Safety Board (“NTSB”) issued a recommendation last week to lower the blood alcohol limit for driving from .08 to .05. If and when this change comes to New York, it will be a game changing threat to the restaurant, bar, and wine/liquor store industry. For a recent news article discussing the impact of the proposal on the restaurant industry, click here. Lowering the BAC levels for drunk driving will cause one of three things to happen: (a) alcohol sales will decline because customers will drink less, (b) table turns will slow down because customers will stay longer so that the alcohol they drank will metabolize, (c) attempts to compensate for the changes will eat into profits, i.e. lowering the alcohol content of drinks, or increasing the amount of food portions served to moderate the alcohol. Now, it will be up to New York to decide whether and when to adopt this change, and there will be no shortage of political lobbying on both sides of the argument. Regardless of where you stand on this issue, it has the potential to severely impact the revenue and profits of the hospitality industry in New York. So, my suggestion is that you stay in touch with your political and industry contacts and keep an open eye and ear for any developments on this subject.

NEW FORM I-9 – EFFECTIVE MARCH 8, 2013

U.S. Citizenship and Immigration Services (USCIS) published the long-awaited new Form I-9, effective March 8, 2013. The new Form I-9 can be found at www.pmphr.com/Human-Resource-Consulting.

Although employers can start using the form immediately, USCIS will allow a “grace period” until May 7, 2013 to implement its use. Thus, employers can continue to use the Form I-9 which shows an expiration date on the top right of 8/31/2012. However, beginning May 7, 2013, all employers must use the revised Form I-9 for all new hires in the United States and for re-verifications. Employers should not complete a new Form I-9 for current employees if a properly completed Form I-9 is already on file.
The revised Form I-9 is now a 2-page form and has several new features intended to assist in reducing errors. There are 6 pages of detailed instructions along with the listing of A, B and C acceptable documents. The form more clearly describes the sections that employees and employers must complete. The revision date of the Form I-9 is printed on the lower left corner of the form (3/8/13) and shows an expiration date of 3/31/2016.

Click Here for the New I-9 Form

U. S. Immigration and Customs Enforcement (ICE) will be hosting a free webinar on Thursday, March 14, 2013. There is no pre-registration, just sign in 15 minutes prior to the 10:00 AM EST start of the webinar.

Now is a good time for companies to audit their I-9 forms to be sure that:

1. There is one on file for each employee

2. Terminated employee’s I-9 forms are properly stored in a separate file from current employees and are kept for 3 years from date of hire or 1 year from date of termination, whichever is later

3. If the company chooses not to keep copies of the acceptable documents attached to the Form I-9, it should verify that either Section A or Sections B and C are correctly completed, indicating the type of document(s) provided, appropriate document number, name of issuing authority and expiration date (if applicable)

4. The employee has completed Part 1 on the first day of work (or prior)

5. An HR representative has signed Section 2 no later than 3 days from date of hire

6. The employer’s name and address are correctly filled in.

If in auditing your Form I-9s, you find that there are errors, please call PMP or your advisor to consult on how you can legally correct errors.

Grace Conti has guided and assisted clients with I-9 compliance since 1993. If you have any questions regarding the new Form I-9, please call Grace at 516-921-3400, or e-mail her gconti@pmphr.com

Everything old is new again…

As an owner / hands on operator I ‘overhear’ the banter of my servers from the podium, on the floor, at the service bar and in the kitchen.

Many of our servers are young and somewhat green, coach-able, but not always imbued with the inherent knowledge that a seasoned server brings to the table, pardon the restaurant pun.

Our next training session will be in highlighting some of the retro language and new/old menu items.

Examples: Old drinks are enjoying a resurgence – Rob Roy’s
A server asking ‘Wasn’t that the guy from BraveHeart?’
A customer requesting a doggie bag for his remaining steak
A server commenting ‘ I can’t believe this guy is giving a Rib Eye to his dog!’

You can’t make it up!

Raisin Day

Claiming Your Territory

Are you on the map? The Google map, that is. Many people may not realize that you are actually able to create and claim your business’ address on Google maps. If you haven’t done this yet, there are a few reasons why you should;

• It’s easy and it doesn’t cost anything!  It is only a matter of listing your business with Google Places and claiming the “place page” on Google maps. It gets you to the top When people search for “pizzeria in (insert your city’s or town’s name here)”, any pizzeria who has created a Google maps place for themselves will automatically show up at the top of the search results as one of those red bubbles on the map, regardless of how far up or down your actual website’s link shows up in the results.

• It helps your SEO If you have a website for your business, you are probably well aware of the importance of SEO. By putting your business on Google maps it creates another quality inbound link to your website, boosting your SEO and page ranking.

• Overall, it’s a great way for your customers and potential customers to find you, and to increase your presence online.

New York City employers can now be held liable for employment discrimination if they consider an applicant’s unemployment status when making hiring decisions, unless “there is a substantially job-related reason for doing so”.

While other jurisdictions have passed similar laws in recent years, New York City’s law is the first to provide applicants with a private cause of action to sue for unemployment discrimination. Successful plaintiffs can recover economic damages, damages for emotional distress, punitive damages, and an award for their attorneys’ fees. 

In order to comply with the new law, New York City employers are well advised to consider the following.

Exercise caution when interviewing unemployed candidates. The amended HRL permits employers to inquire “into the circumstances surrounding an applicant’s separation from prior employment.” However, if the applicant does not receive an offer, he could allege that such inquiries were evidence of discriminatory animus regarding his unemployed status. 

When making a job offer to an unemployed applicant, give thought to whether the salary offered is less than what would be offered to an employed applicant. The amended HRL prohibits employers from considering an applicant’s unemployment status when making any employment decision, including compensation decisions.

Job advertisements must be worded carefully. The new law allows advertisements to require that applicants hold current and valid professional or occupational licenses, certificates, permits or other similar credentials. The statute also permits employers to limit the applicant pool to those currently working for the employer. However, advertisements may not indicate that being currently employed is a requirement for a position.

Sparks Steak House, an upscale steakhouse in New York City, will pay $600,000 to 22 employees, all male waiters, and take other steps to settle a sexual harassment and retaliation lawsuit.

According to the EEOC’s lawsuit, “…22 male waiters were subjected to harassment based on their sex, chiefly by one male manager, over a nearly eight-year period. Many of the waiters complained to other managers and Sparks’ owners, but the harassment did not stop. Some victims of harassment suffered retaliation for complaining by being given more difficult work assignments and/or ultimately being suspended.”

The length of time this conduct was allowed to continue made this case particularly intriguing. The Equal Employee Opportunity Commission’s (EEOC) Supervisory Trial Attorney Robert D. Rose said, “The severe sexual harassment at Sparks ran rampant for too long. Employers must recognize and act on their duty to prevent sexual harassment of any kind.”  When an employer fails to address harassment and responds by retaliating against the victims, as did the manager at Sparks Steak House, the violation’s severity increases.

Sexual harassment, and retaliation for complaining about it, violates Title VII of the Civil Rights Act of 1964 which includes protection against same-sex harassment.

The settlement (announced November 15, 2012) also requires the restaurant to: 1) establish a complaint hotline for reporting incidents of discrimination; 2) distribute an amended policy prohibiting sexual harassment and retaliation to all employees; 3) conduct anti-discrimination training for employees; 4) post a public notice about the settlement; and 5) report all sexual harassment and/or retaliation complaints to the EEOC.

What can employers do to avoid harassment lawsuits?

1) Have a strong company policy against discrimination, harassment and retaliation.  The policy should be posted on all bulletin boards and employees should sign off on the policy on a regular basis.
2) Establish a procedure for employees to bring complaints to managers, HR or anyone in upper management.
3) Address all complaints in a timely manner and as confidentially as possible.
4) Assure that the complaining party is not retaliated against for bringing the complaint to management.
5) TRAIN, TRAIN, TRAIN – All managers must be trained to recognize harassment in the workplace and how to properly handle it.

For guidance on workplace laws or to make an appointment to discuss your workplace matters, please contact Grace Conti at 516-921-3400 or email Grace at gconti@pmpHR.com.

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Margaret Dixon, Long Island Food Safety Consulting (631)774-7073

Well, turns out state Supreme Court Justice Milton A. Tingling issued a decision late Monday afternoon which invalidated the entire rule. To see the text of the decision, click here. This decision voids the entire rule. As of now, the rule is not valid and cannot be enforced. Of course, New York City has already said it will appeal, which means the reversal may be itself reversed in the future. So,what is a responsible owner or operator to do? The only thing you can really do now is manage your business and wait for the next ruling.

-David Gabay

Law Offices of David A. Gabay, PC

By Arthur Katz, CEO Knockout Pest Control

They’re small—hardly bigger than a sesame seed—but fungus gnats turned out to be a big problem for one area restaurant.  A popular watering hole on Long Island was doing everything right. Though they kept their facility meticulously clean, they got slapped with a health violation and a heavy fine when inspectors found a sizeable fungus gnat infestation at their bar.

At a loss as to what to do, they called us in. What we found was common: an infestation site that the restaurant operators hadn’t even considered. The floor around a busy bar gets splashed with sugary sodas and sticky juices. The staff washed the bar floor daily and flushed the drain—sometimes two or three times a day. But when we opened the drain and snaked down a few inches, we found a mass of accumulated goop. Out of sight and out of mind, that sticky drain slime was a busy breeding ground for the gnats.

A restaurant operating in a busy commercial building had a persistent mouse problem. They had done their best to keep food preparation areas clean, to promptly remove trash and to seal stored food securely. Still, the mice kept coming. When we arrived on site, we spotted the trouble source immediately. The problem wasn’t in the restaurant at all. The mice were slipping into the basement of this multi-tenant building through a gap in the foundation in a basement area that wasn’t in the restaurant’s control. The restaurant owners had a difficult negotiation with their landlord and another tenant to seal up that point of entry. A few hundred dollars of repairs saved them thousands in pest control costs and even more in fines avoided and reputation protected.

Both these establishments discovered the hard way what savvy food service operators know: Taking an integrated approach to pest control is a business necessity.

Pests are an endemic problem for restaurants. It’s never a question of if you have pests, but how many and how problematic they turn out to be. Integrated pest management is a way of staying ahead of pests and preventing infestations. Prevention is always cheaper than curing. It reduces your risk of getting a citation during a surprise inspection and keeping pests in check through is the best way to protect your reputation with customers. Your reputation is truly your most important business asset.

Integrated pest management is a proactive approach for preventing pest s from growing into real problems. This approach relies on the safest and ongoing techniques that save you time and money. The key components are:

• Sanitation: Washing floors, walls, drains and equipment frequently and removing garbage promptly
• Exclusion: Installing barriers to common entry points for pests including under door sweeps, sealants for cracks and holes and installing screens in vents and windows
• Reduction: Getting rid of pests in a food service environment means relying on alternatives to pesticides like mechanical traps, glue boards and electronic fly machines and using green pesticides and select food-service approved chemicals
• Monitoring and evaluation: Employing methods for tracking the presence and source of pests and evaluating the effectiveness of treatments.
• Expertise: A pest management expert with the right licenses and certifications can find problems you may not be aware of, points of entry you haven’t considered and has the tools and expertise to apply the right treatment at the right places

Innovation in the field of integrated pest management as new techniques and green approaches hit the market at a rapid pace. Working with a company that is driving that innovation will pay for itself in terms of reduced pest management costs overall, and in terms of saved reputation and reduced inspection risk.

5 most common pests

Common flies

Fungus gnats

Mice

Roaches

Ants

Food Service Inspection Checklist

Municipalities may have varying processes for food service inspections, but general areas include:

• Exterior: Gardens, lawns, planters, parking areas, receiving areas, and trash receptacles
• Exterior structure: Roofs, eaves, doors, windows, walls, drains, foundations
• Interior structure: Attic, vents, skylights, drop ceilings, doors, windows, basements
• Dish washing areas: Equipment, drains, grease traps, garbage cans
• Kitchen: Prep and cooking equipment, refrigerators, dispensers, sinks, drains, cabinets
• Utility areas: Shelving, electrical panels, water heaters, cleaning closets
• Dining areas: Salad bar, beverage bar, planters and décor, seating and tables, windows
• Bathrooms: Floor, fixtures, trash
• Employee lounge: Changing areas, lockers, seating areas, trash, bathrooms

Arthur Katz is CEO and innovative founder of Knockout Pest Control, a company with special licenses and certifications for commercial pest control in food service environments.

Arthur Katz

800-244-7378

akatz@knockoutpest.com