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Archive for October, 2017

Oct 31 2017

RESTAURANTS SERVED WITH SEXUAL HARASSMENT SUITS

Published by under Sexual Harassment

 

The Equal Employment Opportunity Commission (“EEOC”) has targeted the restaurant industry as the “single largest” source of sexual harassment claims. With all the media attention on the subject lately, the number of sexual harassment cases filed each year against restaurants and their owners are escalating at an all too rapid pace. Restaurant owners must now take a pro-active stance to keep such complaints from damaging their operation. All employees, male and female, need to be formally informed as to what types of conduct are unlawful. Assuming that your managers and employees know how to behave without explicit guidelines could be your ticket to the courthouse. A series of Supreme Court decisions have defined what “sexual harassment” means. Those cases, and the interpretive guidelines of the Equal Employment Opportunity (EEOC), define two distinct types of sexual harassment:

 

quid pro quo (a legal term meaning “this for that”), in which a supervisor demands sexual favors from an employee and threatens to fire the employee if the conditions are not met; and

hostile environment, in which a supervisor or employee creates a work environment through verbal or physical conduct that interferes with another co-worker’s job performance or creates an intimidating work environment. A hostile environment is created when unwelcome sexual behavior is repeated. For example, an employee keeps telling off-color jokes after another staff member says they are offensive, or one employee keeps asking another employee for dates after being refused.

GENERAL RULE: An employer’s obligation with regard to sexual harassment arises before any act of harassment even occurs. As such, most lawyers practicing in this field strongly urge their employer-clients to distribute a clear and explicit sexual harassment prohibition policy and reporting procedure. Additionally, Anti-harassment training should occur on a regular basis which should educate managers and other employees as to what conduct is specifically prohibited (including a presentation of hypothetical harassment scenarios) and what to do if the employee believes they have been/are being harassed.

This policy and training is critical because under federal case law, an employer can fulfill its obligation if it takes all reasonable steps to prevent harassment before it occurs and takes effective steps to promptly remedy the harassment after it takes place. If these general principles are consistently and carefully applied, the employer can go a long way towards limiting its exposure and liability for sexual harassment.

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Oct 30 2017

EMPLOYMENT CONTRACT: Keeping Key Personnel

As the owner of a restaurant, you should consider providing your key personnel with employment contracts. The employment contract will provide the employee with job security, will clarify all of the conditions and duties of employment, and will create a contractual obligation for them to be employed for the term of the contract.

GENERAL RULE: While there is no required form that the contract must take, certain key provisions should be included, such as the (i) term (i.e. length of employment), (ii) compensation, (iii) employees duties and obligations, (iv) confidentiality, non-disclosure, non-compete, and non-solicit provisions, and (v) grounds for termination or a “Just Cause” clause.

The more detail contained in the contract, the less room for disagreement during the employment period. As an owner, be sure to have the “Just Cause” clause worded in a manner that allows you to terminate the employee during the term, without any penalty, if the employee engages in negligence, misconduct, excessive absences, drug use, theft, fraud, fails to perform his duties in a professional manner, performs an act or omission of an act that could be deemed injurious to the company financially or to its reputation, or is convicted (or a plea of no contest) of any misdemeanor or felony.

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Oct 30 2017

Americans with Disabilities Act Compliance

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The Americans with Disabilities Act (ADA) is one of the most important national civil-rights laws dealing with the rights of people with disabilities. The ADA prohibits discrimination on the basis of a disability in areas of employment, places of public accommodation, housing, public services, transportation, and telecommunications. However, a barrage of ADA lawsuits have recently been filed against New York restaurants and bars and a great deal of them really have nothing to do with assisting those with disabilities.

I very recently defended another NY restaurant in an ADA case where the Plaintiff was claiming that the bathrooms were not ADA compliant because the mirrors were too high, the pipes under the sink were not properly insulated, and the bathroom sign was placed too high and didn’t contain the word “bathroom” in braille. In that case the Plaintiff was correct. These issues were in fact violations of the ADA and the Defendant restaurant had no choice but to settle the legal action. The settlement included a nominal payment to the Plaintiff himself, a much larger payment to the Plaintiff counsel for their legal fees (prevailing Plaintiffs are entitled to legal fees in ADA cases so these amounts are always worked into a settlement), and an agreement to fix the violations. The total settlement payment was over $10,000.00 plus tack on another $6,000.00 for legal defense fees bringing the cost of that legal action to over $16,000.00.  The actual cost incurred to fix the violations . . . .$95.00.

Defendants with any ADA violations, if sued, must ultimately make a business decision. That business decision almost always requires the Defendant to settle the case rather than proceed forward running up their own legal defense fees along with the plaintiff’s legal fees.

The point of this post is simple. Be fully ADA compliant. The ADA law is very technical and even a minor violation may result in a very expensive lawsuit from an “enterprising” plaintiff counsel. Be proactive. Retain qualified legal counsel and have them do a walk-through of your establishment ensuring compliance and pointing out any and all issues.

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Oct 29 2017

TRADEMARK: What’s in a name?

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You worked hard thinking of that perfect name for your restaurant, you spent a small fortune and countless hours marketing that name, and because of all your efforts that name has developed a great “buzz” and reputation in New York. . . and less than a year later another restaurant opens up in NYC with almost the same name as yours! To make matters worse, people are now going to that other restaurant thinking that it’s yours! What do you do?

If you had your restaurant’s name “trademarked,” you would call your attorney, he/she would draft and send a “cease and desist” letter to your competitor, and you would put that competitor out of business or at the very least force them to change the name of their restaurant.

GENERAL RULE: Trademark registration for the name of a restaurant or bar should be done for EVERY establishment so long as it can be done.

A trademark is any word, name or symbol adopted and used by a person (or that person has a bona fide intent to use that word, name or symbol and subsequently does use it) that identifies and distinguishes his or her goods or services from those manufactured and sold by others, and indicates the source of those goods or services. Names of restaurants, as long as they are not generic or merely descriptive, are terrific candidates for trademark registration. Additionally, a trademark is considered an asset which is not only valuable to a business but invaluable to a business if you are considering opening more than one establishment with the same name or ultimately licensing and/or franchising your concept.

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