Thursday, September 30, 2010

Working While Your Sick; A Way Of Life For Hospitality Employees

A Chicago restaurant worker recalls a time he was sick but felt he had to work or else be fired: "It was an incredibly busy weekend," he said, "at one point, one of my fellow workers sat me down because I was about to faint. The smell of grease and a long shift had taken their toll. I spent the next five days vomiting, expectorating phlegm and drinking a lot of orange juice. I had to force my co-workers to cover for me and work double shifts. They didn't want to see me fired, and I didn't want to lose my job. Later that week, two of my co-workers caught my virus as well as quite a few customers."

Stories such as these are scattered throughout "Serving While Sick," a report on the health, safety and healthcare of restaurant workers in the U.S., put out by the Restaurant Opportunities Centers United, a New York-based national restaurant workers' organization that supports higher wages and better work conditions for restaurant employees. The report, released today, is based on 4,323 surveys of restaurant workers across the country, plus 240 employer interviews. The report also includes results from 500 more worker surveys and 20 additional interviews with employers on health insurance needs.

Regarding risks that restaurant workers encounter, 36.1% said it was unsafely hot in the kitchen, 25.2% said there were fire hazards in the restaurant and 38.1% said they had done something that put their own safety at risk. In addition, 66.6% of workers said they didn't know worker compensation laws and 33% said they never underwent health and safety training provided by employers.

Among injuries sustained on the job, 45.8% of workers were burned, 49% were cut and 24.5% had contact with toxic chemicals. As for workplace practices, 38.1% said time pressures caused them to do something that put their own safety and health at risk, and 42.5% said that time constraints caused them do so something that may have harmed the health and safety of customers.

Most workers surveyed said taking time off when sick was difficult. Almost 90% of restaurant employees said they don't get paid sick days, nearly 80% said they don't get paid vacation days and about 64% said they've worked while sick.

Quotes from anonymous workers sprinkled throughout the report relay similar messages: Most workers don't take time off when sick because they won't get paid and they fear that too much time taken off will result in being fired.

The vast majority of workers, 89.7%, don't get health insurance through their employer. About 62% don't have any health insurance and about 23% had gone to the emergency room but weren't able to pay the bill.

On the employer side, there was a general agreement that health insurance was essential for current employees and important for hiring and keeping potential workers.

It should come as no surprise that almost half of the restaurant workers surveyed were foreign-born. About 15% said they were undocumented workers.

The report's policy recommendations included giving workers benefits such as paid sick days and healthcare, providing health and safety training, and improving health and safety conditions in restaurants.

-- Jeannine Stein / Los Angeles Times

Monday, September 6, 2010

Family Medical Leave Act (FMLA) and The Americans with Disabilities Act (ADA)

What is considered a serious health condition? Not a cold or the flu. It has to be illness, injury, impairment, or physical or mental condition that involves care at a hospital or other medical office. You also have to be unable to attend work or perform regular daily activities, or be receiving continuing treatment for a chronic or serious condition from a health provider.

Am I protected by FMLA? Not always. If you work for a private employer at a location within a 75-mile radius of a job site with 50 employees, then you may be eligible for job protection and medical leave under FMLA.

You also must have worked for the employer for one year, though the time worked doesn't have to be all at once. Within the previous year, you must have worked 1,250 hours, or at least 24 hours a week, to qualify.

Do I need to take leave for a health condition all at once? No, there are different types of leave an employee may take under FMLA. If it's for childbirth or surgery, for example, the worker might give the employer notice of weeks required for recuperation. A cancer patient on chemotherapy, however, might need small doses of time over a period of months for medical treatment.

How much time off can I take under FMLA? At most, 12 unpaid weeks. Some employers continue pay during that leave. Certain workers could get more leave related to their health condition under the Americans With Disabilities Act (ADA).

Do I have to inform the employer I'm taking FMLA? Employees are not required under the law to specifically tell an employer, "I want an FMLA leave.," but they should provide enough information that there might possibly be a need for a leave. Employees and employers should err on the side of giving and receiving more information.

An employee is usually best served by documenting a health condition or disability with the employer, experts say.

Kessela Brown, spokeswoman for the EEOC in Miami, said it's up to the employee to tell their employer about their health situation and ask for an accommodation, if necessary. "Most accommodations are under $500," she said.

Are employers generally flexible with employees who are cancer patients? Half of employers that responded to a recent survey about accommodating seriously ill employees say they made the requested accommodations "all of the time." The other half indicated they made the requested accommodations "most of the time," according to a survey by the International Foundation of Employee Benefit Plans.

Those accommodations included flexible hours, reduction in hours, additional breaks and telecommuting.

What types of health conditions does the ADA cover? The ADA was amended in 2009 to apply to a broad array of health conditions where a patient might have recurring episodes, such as cancer, Brown said. Employers have the right to ask for documentation for a health condition when an employee requests leave.

Employers should provide their workers with a Department of Labor form for their doctor to provide more detail about their health condition. Medical information must be kept separately from the worker's regular personnel files, according to the DOL.

What if I'm denied FMLA leave? Call a lawyer specializing in employment discrimination. The Florida Bar Association provides referrals. Or file a complaint with a federal, state or local agency that handles employee violations (see detail in box.)

Can I be fired if I have a serious health condition?
After 12 weeks of leave, the employee has the right to reinstatement to the same or equivalent position. But if the company happens to be going through layoffs, workers on FMLA or disability leave can't be singled out, but are not immunized from layoffs that would have otherwise affected you.

What should I do if my employer is harassing me to come back to work? Within the 12 weeks, the employee cannot be forced to come back to work until the doctor certifies it's OK to return. If the health condition is serious, but is not a disability that might provide more leave under ADA, then the employer is not obligated to reinstate the employee after the 12 week-maximum.

If I decide to sue, could I win a large jury verdict? It's always possible, but most employees who sue for employee law violations don't win big verdicts. Often the cases are settled or even dismissed. Awards under ADA are limited to $300,000. The Florida Civil Rights Act caps punitive damages at $100,000, but there's no limit for emotional pain and suffering.

Sunday, September 5, 2010

Walkouts – Who Is Responsible For Paying The Check?

Walkouts – Who Is Responsible For Paying The Check?

Walkout, Dine and Dash, Short Changed – they are all the same. Someone sits in your section, has a meal, and leaves without paying the all or part of the check. Yes, this has even happened to me and I had to make up the difference at the end of my shift. Is this legal?

Certainly not. Walkouts are a part of doing business for restaurant owners who can implement polices to help prevent patrons who want a meal but do not want to pay.  However, if you have read some of my other blog postings, there are always exceptions when it comes to restaurant law in Florida.

This is why it is illegal:

Most restaurants pay their service staff a reduced hourly wage of $4.23/hr. (Fla. Minimum Wage is $7.25/hr. minus the Federal Tip Credit of $3.02/hr. equals $4.23/hr.) When management requires a server to pay for a walkout out of his/her pocket, the hourly wage is dropped below the minimum allowable by law. The exception occurs when you are paid more than the minimum wage and the walkout deduction would not bring you below $7.25.

Of course it is a server’s job to watch his/her station to make sure people do not forget to pay, however, servers cannot be everywhere at once. This is why it is important that servers working next to each other watch each other’s stations and that management make sure that host/esses help too.

Walkouts are everyone employees responsibility, however, when it comes time to reconcile the POS, it is management’s, not the servers, legal duty to take care of the bill for the walkout.

As always, the legal opinion above does not apply to every single fact scenario dealing with walkouts so please call and ask us any questions you may have about your hospitality job.

Law Office of Lowell J. Kuvin
17 East Flagler Street, Suite 223
Miami Florida, 33131

Tele: 305.358.6800