Law | KRG Hospitality

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November 15, 2023by David Klemt David Klemt No Comments

Ontario Updates Employment Standards Act

Ontario Updates Employment Standards Act

by David Klemt

Yesterday, Ontario, Canada’s government tabled updates to the province’s Employment Standards Act meant largely to protect restaurant and hospitality workers.

These explicit protections are known as Bill 79, Working for Workers Four Act, 2023.

Interestingly and timely, the updates seem to be, at least in part, a direct response to technological developments.

For example, Bill 79 addresses digital payment apps and artificial intelligence. I’ll expand on that below.

These updates certainly appear to have been drawn up to protect restaurant workers specifically, and hospitality professionals overall.

An End to Unpaid Trial Shifts

One of the most significant updates addresses hours and pay.

It likely shouldn’t have to be said but, according to Ontario law, an employee must be paid for all the hours they work. This includes trial shifts.

Specifically, the new legislation expressly prohibits unpaid trial shifts.

Pooling Tips

Employers in Ontario are well within their rights to share in pooled tips. That is, if the employer is performing the same tasks as staff.

However, there’s now an update to this practice within the Employment Standards Act.

If any employer intends to share in a tip pool, they must make this clear and inform staff.

Speaking of Tips…

For the most part, digital payment platforms bring with them transaction fees. This includes fees for restaurant workers to get their tips.

“We’re seeing apps that are taking a cut every time…a worker accesses their tips, and that’s not acceptable,” says Piccini.

So, moving forward, employees who are paid tips via direct deposit will have more control. The updates to the Employment Standards Act now state that employees paid this way can choose where their tips will be deposited.

Deducting Wages

Per multiple studies, one in 20 diners has dined and dashed. Apparently, it has been common practice for some employers to deduct wages in response.

Personally, I think it’s ridiculous for any employers to pass a business loss on to their workers. That’s neither good leadership, ethical, or a healthy work culture. I’m not saying I’m surprised it happens; I’m disgusted that it still happens.

Now, the practice of penalizing employees monetarily for guests dining and dashing is prohibited specifically. Will that stop it from happening? Probably not, although perhaps it will happen much less moving forward.

This also includes language that makes it illegal to deduct pay from employees due to customer “gassing and dashing.” For anyone wondering, gas theft affected Ontario businesses to the tune of $3 million CAD in 2022.

Artificial Intelligence

Some employers, as many job hunters are aware, use artificial intelligence during the hiring process.

Now, these employers will have to disclose their use of AI in job listings. In theory, this update addresses privacy and data collection concerns.

Further, job listings will now have to include salary ranges. Also, employers are now prohibited from requiring work Canadian work experience in their job listings or on their application forms.

To review Bill 79 in its entirety, click here.

Image: mkdrone_ on Unsplash

May 10, 2021by David Klemt David Klemt No Comments

Can You Fire Staff for Refusing Vaccine?

Can You Fire Staff for Refusing Vaccine?

by David Klemt

Can an employer terminate a staff member’s employment for refusing the Covid-19 vaccine? Current court cases seek an answer to that question.

Conversely, there are bills up for consideration in some states that aim to ban vaccine mandates.

Therefore, the current answer to the question of whether employer vaccine mandates are legal isn’t clear, yet.

It’s also important to note that this question is up for legal examination in Canada and America.

Are Employers Really Mandating Vaccines?

Of course. Well, some are. And it’s bound to continue until the question has been tested in court.

Looking at Canada, Ontario’s Ministry of Labour says employers can, in fact, make vaccines mandatory. They can also (for now, at least) demand proof of vaccination from their employees. Failing to answer the question or lying about can result in an employee losing their job.

However, the ministry acknowledges that legal and ethical issues come hand in hand with blanket vaccination mandates.

In America, the issue is no less thorny, to put it mildly.

Per a survey by Arizona State University and the Rockefeller Foundation, almost 90 percent of employers in the USA (and UK) have plans to “encourage or require vaccination for employees.”

Encouraging, of course, stands in stark contrast to requiring in a legal, ethical and moral sense.

That same survey suggests that most US employers—two-thirds—plan to use vaccination incentives rather than mandates. However, 44 percent say they’ll implement mandates if incentives don’t work. Just one-third of survey respondents say they don’t intend to require vaccinations as a term of employment.

Legal Challenges

Vaccine requirements and credentials (“vaccine passports”) have been banned in Arizona, Florida, Idaho, Montana, Texas and South Dakota.

Bills have been introduced in at least half of American states that seek to “limit mandatory COVID-19 vaccines,” per the National Conference of State Legislatures.

Lawsuits have been filed by workers in various industries in several states, including New Mexico and California.

It’s likely just a matter of time until the Supreme Court of the United States is at least asked to settle the matter of vaccine mandates.

Currently, attorneys and agencies say that employers need to inform employees of the consequences for refusing Covid-19 vaccination, including loss of employment; put a vaccination policy in place and communicate it with all employees; and include religious and medical exemptions.

That said, this matter is a long way from settled.

Could vs. Should

One thing is clear: It’s not clear yet whether employers can terminate employees for refusing vaccination. We can expect a flurry of lawsuits either way.

However, it’s important that operators realize this isn’t solely a legal question. This is in no small part a leadership question, and it’s a tough one.

As the saying goes, just because you can, doesn’t mean you should.

Operators must consider the ramifications of vaccine mandates. Moving forward, some guests may only support businesses that require vaccination for staff. Conversely, some guests may find such a requirement discriminatory and offensive, and they may boycott businesses with vaccine mandates.

It’s a difficult position for operators and staff. Our industry puts employees and the public in direct, close contact with each other. Team members are likewise in very close quarters. Close interactions for prolonged periods can spread any number of viruses, not just Covid-19.

The instinct to protect staff, their family and friends, and the public is common among operators. The past twelve-plus months have strengthened that resolve.

Incentivizing Instead

Requiring vaccination may exacerbate the current labor shortage.

Yes, there are some employees and potential new hires who will feel more comfortable knowing their coworkers have been vaccinated. However, there are also people who will refuse to work for an employer who requires vaccination. A mandate could damage recruiting severely as word gets around.

It’s reasonable to suggest that operators are best off implementing a vaccination incentive program rather than a mandate. Most people would likely agree that encouragement rather than requirement, at least regarding this topic, shows greater emotional intelligence, a cornerstone of leadership.

The CEO of the Cosmopolitan of Las Vegas reportedly hit their minimum goal of an 80-percent vaccination rate among staff last week. The resort’s incentive program offered bonus payments (among other incentives) for vaccinated employees set up in tiers:

60 Percent Vaccination Rate: $50
70 Percent Vaccination Rate: $100
80 Percent Vaccination Rate: $250
90 Percent Vaccination Rate: $350
100 Percent Vaccination Rate: $500

That program helped the company hit their goal in just a few weeks. Operators can certainly use the Cosmo as a model for encouraging vaccinations instead of requiring them. Ultimately, the choice is up to the individual operator. It isn’t an easy one.

Disclaimer

This content is for informational purposes only, and should not be used as legal or other advice. This article does not constitute legal advice, nor does any information constitute a comprehensive or complete statement of the matters discussed or the law. This information is of a general nature and does not address the circumstances of a specific individual or entity. The reader of this information alone assumes the sole responsibility of evaluating the merits and risks associated with the use of any information before making any decisions based on such information.

Image: Braňo on Unsplash

February 12, 2021by krghospitality krghospitality No Comments

On the Menu for 2021: The RESTAURANTS Act

On the Menu for 2021: The RESTAURANTS Act

by David Klemt

Much like restaurants themselves, the RESTAURANTS Act has faced multiple starts and stops.

The bill received huge bipartisan support in 2020, landing dozens upon dozens of co-sponsors.

However, that widespread support didn’t materialize into any actual progress—the bill was never signed into law. That must change now.

A Long Road

It’s February 2021. The House and Senate must work together to provide the targeted relief of the Real Economic Support That Acknowledges Unique Restaurant Assistance Needed to Survive (RESTAURANTS) Act.

The RESTAURANTS Act was first introduced to the House of Representatives on June 15, 2020. The bill was eventually included in the revised Heroes Act, which was passed by the House on October 1, 2020 on a vote of 214 to 207.

Unfortunately, that bill was “dead on arrival” and didn’t receive a vote on the Senate floor. A $900 billion stimulus package was negotiated in December of 2020 but the RESTAURANTS Act wasn’t included in it.

It has been more than long enough—it’s beyond time for action.

Where are We Now?

Throughout all of this, from inception to current status, the Independent Restaurant Coalition (IRC) has never faltered in their campaign to ensure this industry receives the targeted relief it so desperately needs.

It’s wise given how the number of times we’ve been let down by our elected officials to be guarded and cautiously optimistic about the RESTAURANTS Act finally being signed into law this month.

On February 5, Senators Roger Wicker (R-MS) and Kyrsten Sinema (D-AZ), and Representatives Earl Blumenauer (D-OR) and Brian Fitzpatrick (R-PA) formally (re)introduced the RESTAURANTS Act to the 117th Congress.

What’s in the Bill?

In its current form, the RESTAURANTS Act:

establishes a $120 billion relief fund for foodservice and drinking establishments;
makes groups that operate up to 20 units eligible for relief from that fund;
provides operators access to grants of up to $10 million for eligible expenses; and
makes the grants retroactive to February 15, 2020 and ends them eight months after the legislation is signed into law.

New provisions in the February 2021 RESTAURANTS Act include:

updates to the award calculation based on annual loss from calendar year 2020 instead of quarterly;
grant eligibility for new restaurants that opened after January 1, 2020;
paid sick leave as an eligible expense for employees, with a bonus amount to cover the cost of voluntarily providing ten days of sick leave to employees;
providing the Department of the Treasury the discretion to help reduce waste, fraud, and abuse;
imposing reporting obligations on the Department of the Treasury to share who gets loans and demographic information about recipients; and
ensuring that restaurants can use both the Employee Retention Tax Credit and the RESTAURANTS Act grant program, provided they are not used for the same expenses.

What’s Next?

We must all act to give the RESTAURANTS Act the best chance of becoming law. We have been patient for long enough.

We must let our representatives know we expect them to pledge their support for this bill formally.

The IRC provides several methods for ensuring our representatives understand they need to co-sponsor and pass the RESTAURANTS Act:

Email your representatives and ask them for their co-sponsorship.
Call your representatives directly and tell them why restaurants and bars need the RESTAURANTS Act to be voted on, passed, and signed into law. This is the number to dial: (202) 224-3121. The IRC has provided talking points here.
Share the graphic below on your social channels and encourage your followers to also contact their representatives and ask them to co-sponsor the RESTAURANTS Act. Use the following caption when posting: It’s official: the RESTAURANTS Act of 2021 is on the menu in both chambers of Congress. Call your representatives today and tell them that independent restaurants, bars, and workers can’t wait any longer for direct relief: 202-224-3121 #SaveRestaurants

All of that will take less than 20 minutes. That’s not a lot of time to help finally get this industry the support and relief it needs.

The RESTAURANTS Act is needed to prevent more permanent restaurant and bar closures, and to revitalize the industry. The road to recovery is a long one and getting this bill signed into law is a major step forward.

Please email and call your representatives. Please share the post and caption above on your social media. Please help save the restaurants, bars, and millions of people they employ.

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