12.30.08

The Fairytale of the Overtime Pay Requirements – (Part 1)

Posted in Employment Issues at 10:54 pm by Frank Petrosino

Once upon a time, there was a fancy Vermont restaurant that was so popular the patrons had to make reservations at least 5 months in advance in order to get a table.  One day, proprietors of the fancy Vermont restaurant found themselves in need of yet another cook.  So, the proprietors went to the local culinary school and found themselves a recent graduate with a lot of promise.  The proprietors told the recent graduate that she could come cook at the fancy Vermont restaurant only if she worked many hours; however, the recent graduate would only be paid $10 per hour and would get no overtime pay. 

Now, the recent graduate slaves away in the sweltering kitchen of the fancy Vermont restaurant for 13 hours a day at least 6 days a week and is constantly told that this is what it takes to earn any status in the culinary world.  Must the recent graduate slave away with no hope of overtime pay?!? 

Overtime Pay Requirements in Vermont
Every time a Vermont employer permits an employee to work more than 40 hours per workweek, the employer must immediately ask, “Is this employee entitled to overtime pay?”  Assuming the employer does not have a contract with the employee to pay overtime, the employer will want to look to the Federal Fair Labor Standards Act (“FLSA”) and Vermont’s overtime laws (covered in Sections 381 through 396 of Title 21 of the Vermont Statutes Annotated). 

Under the FLSA, employees paid on an hourly basis are generally entitled to an overtime pay rate of 1.5 times their regular pay rate for hours worked over 40 in a seven-day workweek.  Employers are free to set the day and hour when a seven-day workweek starts and ends; however, it must be at a fixed time and cannot be changed unless the change is intended to be permanent.  Vermont overtime laws mirror the FLSA in terms of the amount of overtime pay for hourly employees and the calculation of the workweek. 

Of course, where there is a rule there are usually exceptions.  Both the fancy Vermont restaurant and the recent graduate are going to want to know if (a) the fancy Vermont restaurant is covered by either the FLSA or the Vermont overtime laws (or both) and (b) if either or both apply, whether there are any applicable exceptions to the overtime pay requirements. 

Employers Covered Under the FLSA and Vermont Overtime Laws
The FLSA generally applies to those employers who are engaged in interstate commerce and have annual gross sales or business volume of $500,000 or greater.  Even if the $500,000 threshold is not met, however, an individual employee may be covered in any workweek that such employee engaged in interstate commerce during the scope of her employment (e.g., the employee processed a credit card payment for a customer).  Interstate commerce is an incredibly broad concept that usually includes any activity that even remotely affects commerce that crosses State borders.  If our fancy Vermont restaurant, for instance, is located on a public highway, sends mail out-of-State, receives deliveries from out-of-State, serves out-of-State patrons, or takes credit cards, it is likely engaged in interstate commerce.

Under Vermont overtime laws, employers with two or more employers are covered.          

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12.19.08

Coughing in the Kitchen – Coping with AIDS and Other Communicable Diseases in Vermont Food Service Establishments (Part 2)

Posted in Health and Safety at 9:18 pm by Frank Petrosino

Vermont’s Food Service Establishment Rules
The Vermont Department of Health has issued Food Service Establishment Rules (go here to find a link to the rules: http://healthvermont.gov/regs/index.aspx).  These rules are designed to be in compliance with ADA and FEPA anti-discrimination rules.   Section 5-206 of the rules requires food service establishment employers to ask job applicants to whom a conditional offer has been made about any diseases they have, had, or have been exposed to that are transmissible through food.  In addition, if a food service employee is diagnosed with a disease transmissible through food, or otherwise suffers from symptoms that may be caused by a gastrointestinal illness, he is required to tell his employer. 

The Vermont rules list the four big causes of illness transmissible through food.  They are salmonella Typhi, Shigella spp., shiga toxin-producing Escherichia coli, and hepatitis A virus.  Notice that human immunodeficiency virus (“HIV”) is not listed.  Acquired immune deficiency syndrome (“AIDS”), which is caused by HIV, is also not listed.  Consequently, a food service establishment employer cannot take a way a conditional job offer to an applicant with HIV or AIDS if the person can do the job safely, with or without a reasonable accommodation. 

If a food service employer reasonably concludes that an employee or post-conditional offer applicant poses a direct threat due to a communicable disease, the employer may (and in many cases, must) usually exclude such employee or applicant (as the case may be) from the food service establishment.  Before making any exclusion determination, however, the employer must generally first consider whether there is a reasonable accommodation that could be made or whether the employee could be assigned and fulfill a vacant non-food handling position.  If an employee has been excluded from the food service establishment, the employer may need to keep the position open for when the employee recovers and returns.  The employee’s reinstatement rights may stem from the ADA or could arise from the Family Medical Leave Act (federal law) or the Parental and Family Leave Act (Vermont law).              

Conclusion
Keeping communicable diseases out of Vermont food-service establishments is of paramount concern to the owners of such establishments and to the public at large.  Such concern, however, cannot drowned out the rights of the infected or potentially infected job applicant or employee.  An employer’s prevention techniques must be executed efficiently, fairly, and tactfully. 

This article provides a brief overview of the topic of communicable diseases in Vermont food service establishments and is by no stretch of the imagination an exhaustive treatise on the subject.  I strongly encourage food service employers to read the Vermont Department of Health Food Service Establishment Rules (go here to find a link to the rules: http://healthvermont.gov/regs/index.aspx) and the EEOC’s Guide for Restaurants and Other Food Service Employers (http://www.eeoc.gov/facts/restaurant_guide.html), which are invaluable resources on the subject.  If you need guidance on a specific situation, please contact your attorney (preferably prior to taking action).              

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12.12.08

Coughing in the Kitchen – Coping with AIDS and Other Communicable Diseases in Vermont Food Service Establishments (Part 1)

Posted in Health and Safety at 10:07 pm by Frank Petrosino

You are short one sous-chef de cuisine at your upscale Vermont restaurant and have been searching a while to fill the position.  You have finally found Luka, a culinary school graduate who has experience working as a sous-chef in France and Belgium.  Luka appears to fit the bill exactly and would be a perfect addition to your restaurant.  Just when you are about to offer Luka the position, however, she tells you she is infected with HIV (or has AIDS or tuberculosis or any number of other potentially communicable diseases).

Discrimination Restrictions and Direct Threats
The Americans with Disabilities Act (the “ADA”) is a 1990 federal anti-discrimination law that is enforced by the Equal Employment Opportunity Commission (“EEOC”).  The ADA generally prohibits discrimination based upon a person’s disability.  In the employer-employee context, the ADA applies to private and public employers with 15 or more employees.

Vermont’s Fair Employment Practices Act (“FEPA”) also prohibits discrimination based upon a person’s disability.  In the employer-employee context, FEPA applies regardless of the number of employees the employer employs. 

A disability under both the ADA and FEPA is a physical or mental impairment that substantially limits one or more major life activities.  Physical impairments include hearing loss, blindness, and illness from pathogens transmissible through food.  Whether such impairment limits a major life activity is another question.  Clearly, hearing and seeing are major life activities.  Whether a pathogen limits a major life activity depends upon the severity and duration of the impairment.  Someone who contracted hepatitis A and has been bed-ridden for a year waiting for a liver transplant is likely to be limited in one or more major life activities (e.g., caring for oneself).  Someone who contracts salmonella and recovers in a few days (and is not otherwise disabled), probably is not limited in one or more major life activities for purposes of the ADA and FEPA. 

With regard to communicable diseases in the workplace, the employer may refuse to hire or may terminate or exclude from the employer’s premises any person who poses a direct threat to himself or others in the workplace.  The ADA defines a direct threat as “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by a reasonable accommodation.”  The determination of whether a direct threat exists is made on a case-by-case basis and turns on the disability involved and the requirements imposed by the specific job function.  A prep cook with infectious tuberculosis would likely pose a direct threat when fulfilling her food preparation duties.  A diabetic prep cook who normally wears a medical bracelet (health regulations generally prohibit food preparers from wearing jewelry on exposed arms and hands) would not pose a direct threat when fulfilling her food preparation duties if she instead wore a medical necklace.    

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12.05.08

Welcoming Guests Accompanied by Service Animals (Part 3)

Posted in Health and Safety at 10:08 pm by Frank Petrosino

Can you ask that a service animal be removed from your establishment? 
The short answer here is “Maybe.”  You can ask that a service animal be removed from your premises when the service animal poses a direct threat to the health and safety of others.  Mercifully, service animals are generally well-mannered and clean.  If, however, a service animal is out of control or threatens another patron without just cause, it may be excluded.  Similarly, service animals may be excluded from food preparation areas because of the perceived health risk. 

A service animal that does not pose a health or safety risk, but is otherwise disruptive, can be excluded under certain circumstances.  In order to justify such an exclusion, however, you would need to show that you could not accommodate the service animal without a fundamental alteration to the nature of the business.  Where a restaurant or hotel is concerned, such a showing will generally be difficult.  Most service animals are unobtrusive and can easily navigate the premises of most establishments. 

If the service animal is being potentially disruptive as a part of its service function (e.g., barking to warn its owner that a person is at the hotel door), it cannot be excluded.  If, however, the potentially disruptive behavior is not a service function, and it does disrupt other patrons’ enjoyment of use of your establishment, the service animal may be excluded.  I suggest confirming that the disruptive behavior is not “task” the service animal performs, making detailed records of all complaints (i.e., get the names and contact information of those complaining and document the nature of the complaints), and giving a few warnings to the owner before demanding exclusion.  If it comes down to a lawsuit, you will want to establish that you confirmed with the owner that the disruptive behavior was not a service function, you did indeed receive complaints, and you gave the owner ample opportunity to minimize the disruption.            

Beware!  Asking the service animal to leave is not the same as asking the owner to leave.  The owner of an excluded service animal generally must be afforded the opportunity, without the company of the service animal, to enjoy the goods and services you have to offer.

A Case that Brings It Home to Vermont
In 2005, the Vermont Human Rights Commission decided a case called Corbeil v. The Music Club, and this case highlights the issues hotels and restaurants face with regard to service animals.  Ms. Corbeil suffered from post traumatic stress disorder and a panic disorder.  These disabilities were so severe that they limited Ms. Corbeil’s ability go out in public and interact with others in social settings. 

Ms. Corbeil’s physician advised Ms. Corbeil to get a service and psychiatric support animal to help Ms. Corbeil with her disabilities.  Acting on that advice, Ms. Corbeil did some research on service animals and subsequently obtained a Pomeranian puppy.  With the help of an online support group, Ms. Corbeil trained the puppy herself.  The type and extent of training was not specified in the case; however, the puppy was apparently trained to “perform the task” of maintaining physical contact with Ms. Corbeil and allowing Ms. Corbeil to pet the puppy in order to alleviate nervousness and panic attacks. 

One evening, Ms. Corbeil attended a wedding rehearsal at The Music Club in Williamstown, and she brought her puppy along.  When the owner of the club saw Ms. Corbeil with her puppy, the owner asked Ms. Corbeil to remove the puppy from the restaurant because of health regulation restrictions.  When Ms. Corbeil explained that the puppy was a service animal, the owner asked to see documentation to prove it.  Ms. Corbeil, of course, did not have any documentation to provide.  The owner then asked that the puppy be removed from the premises.  After an alleged emotional exchange, Ms. Corbeil removed the puppy and made a complaint to the Vermont Human Rights Commission.  The Vermont Human Rights Commission held that the puppy had received training and was a service animal.  It also held the owner liable for excluding the puppy from The Music Club premises.  

Needless to say, the owner of The Music Club did not handle the situation appropriately.  Please do not make the same mistake.  

The Heart of the Matter
The heart of your Vermont hospitality business is the ability to create a welcoming, comfortable, and enjoyable experience for all of your guests, including guests with service animals.  Though there may be certain misguided individuals who would lie about their pets being service animals, you can rarely know for sure if someone is lying.  Therefore, err on the side of caution.  When someone claims that his ferret is a service animal, assume that the ferret is indeed a service animal and the owner is not a weasel.

(For more information on this topic, see the U.S. Department of Justice website at http://www.usdoj.gov/crt/ada/animal.htm.)

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12.04.08

Welcoming Guests Accompanied by Service Animals (Part 2)

Posted in Health and Safety at 9:15 am by Frank Petrosino

Vermont’s Health Regulations
 The Vermont’s Health Regulations for Food Service Establishments (see http://healthvermont.gov/regs/03food_estab.pdf) provide that service animals are allowed on the premises of a food establishment, so long as they are kept away from food preparation areas and no health or safety hazard will result from the presence or activities of the service animal. 

How can you verify that an animal is indeed a service animal?
Well, the short answer is “You can’t.”  An owner of a service animal is not required to carry, or provide you with, documentation verifying the service animal’s status.  If it is not apparent that the animal is a service animal, you can ask the person with the animal (a) whether the animal is a service animal required because of a disability, and (b) what tasks the service animal performs.  If the person tells you that the animal is a service animal and then describes the tasks the service animal performs, that is the end of the inquiry.  You cannot inquire as to the type or nature of the person’s disability or ask for any documentation to support the person’s claim that the animal is a service animal.     

There, of course, will be instances where people try and game the system and claim that their pets are service animals when they really are not.  It can be very difficult to tell if a person is lying about whether an animal is a service animal.  The law, however, is clear and only authorizes the limited inquiry described above. 

People with disabilities, especially emotional and mental illnesses, have unfortunately been subject to explicit and implicit discrimination since the dawn of humanity.  Consequently, those suffering from disabilities have had to fight hard to obtain reasonable accommodations so that they can share, to the extent practical, in the benefits that places open to the public have to offer.   The ADA and Vermont law are both designed to provide this opportunity, and to this end, the laws err on the side of protecting people with disabilities from potentially uncomfortable inquiries regarding their disabilities and the resources they use to compensate for such disabilities. 

When a Service Animal is On Premises
Once an animal is claimed to be service animal, the animal may generally accompany the person with the disability in all areas in which your other patrons are normally allowed to be.  You are not, however, required to feed or otherwise care for the service animal; that is the sole responsibility of the service animal’s owner.      

Service Animals Causing Damage
If a service animal causes damage to the premises, you may ask the owner to compensate you for such damages so long as it is your customary practice to charge patrons without disabilities for the same types of damages.  A restaurant that does not customarily charge patrons for broken plates could not levy a charge for a plate broken by a service animal.  A hotel that customarily charges patrons for damaged furniture could charge for a chair damaged by a service animal.  

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