Restaurant Unstoppable with Eric Cacciatore 702: Aaron Colby on The Top 20 Employee Legal Hotspots
Aaron Colby is a graduate of the University of Michigan and Southwestern University of Law.
Today he's practicing law at Davis Wright Tremaine LLP where he represents employers in single-plaintiff, multi-plaintiff, and class action disputes involving allegations of wrongful termination, discrimination, retaliation, harassment, and wage and hour issues such as overtime, meal and rest breaks, and off-the-clock work.
Aaron defends organizations on public accommodations claims under the Americans with Disabilities Act and California Unruh Act, and claims of defamation, trademark, and other business-related matters.
Today we're going to cover the "Top 20 Employee Legal Hotspots" restaurant owners and operators struggle with when it comes to compliance.
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- The 20 Employee Legal Hotspots
- Hiring Decisions and Process
- 1. Use of Staffing Agencies and Joint Employment
- Gig economy
- Hiring vs. contracting
- Unfair vs. against the law
- Document when an employee does something wrong so you can prove it later on
- 2. Independent Contractor (1099) v. Employee (W-2) Classification
- The difference between independent contractors and employees - defined by the law
- 3. Form I-9 Compliance
- You need to make sure someone is legally allowed to work in the United States
- Be vigilant
- Ask relevant questions - know what they are
- Get the I-9 BEFORE they start working
- 4. Hiring - Background Checks and Criminal History Inquiries
- Highly regulated
- 5. Employee Arbitration and Class Action Waiver Agreements
- Why do you need it?
- You can make it mandatory
- Is it a red flag if an employee doesn't want to sign it?
- Wage and Hour
- 6. Non-exempt (Hourly) v. Exempt (Salary) Employee Classifications
- Everyone is qualified for hourly but not salary
- Some salary workers still require over-time
- 7. Local Minimum Wage and Paid Sick Leave Regulations
- City, county, state laws all apply - NOT only state
- 8. Equal Pay
- Everyone deserves the same pay for the same job
- Some states don't allow employers to ask applicants past payment
- 9. Timekeeping for Non-Exempt Employees
- You MUST keep records for all work done
- No insurance for time-keeping in business
- Don't ignore it - address it
- 10. Travel time
- You MUST be paid for it
- Delivery functions
- 11. Meal and Rest Breaks
- You MUST provide the opportunity to all employees
- Police it vs. Provide it
- Not just IF you took a break but also when and for how long and was there an interruption?
- 12. Paystub and Payroll Practices
- Federal is baseline - states individually break it down more specifically
- Paystub requirements
- 13. Commission Agreements and Bonus Plans
- Overtime is much more complicated than "time and a half"
- Anything outside of hourly is complicated and must be understood
- 14. Expense Reimbursements
- No federal laws - all state-by-state
- Driving, getting, phones, insurance - if it's required for the job you must reimburse by state law
- 15. Uniforms and Tools
- If you require someone to wear something, you have to reimburse for it
- 16. and 17. Tips and Service Charges
- Voluntary
- You must categorize them
- Tips are state-by-state
- Tips belong to the employee not the business
- Service charge is demanded by the business
- Harassment and Conduct
- 18. Anti-Harassment Training and Policies
- Major differences from every other work environment
- Some states have harassment training requirements
- Leave of Absence
- 19. Leave of Absence
- Different in restaurant industry than all other industries
- You need to know what rights the employee has
- Get a doctor's note
- Termination Decisions
- 20. Termination Decisions
- All the categories where you're unable to fire someone
- EVERYONE can be protected by discrimination laws
- Separation agreements
- Have policies in place before firing someone for a made-up policy
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Contact info:
Aaron Colby @ Davis Wright Tremaine LLP website
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Huge thanks to Aaron Colby for joining me for another awesome episode. Until next time!
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