Legal Knowledge Center

The Georgia Restaurant Association’s top-notch team of member attorneys take the guesswork out of the multitude of laws and regulations affecting restaurants. Many resources, including a library of articles on legal issues are available to members only

Also, the National Restaurant Association offers a Legal Problem Solver with easy-to-understand summaries of key federal laws and regulations available to GRA/NRA members for free online.
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  • 05 Jan 2015 1:33 PM | Anonymous member (Administrator)
    By: Charles H. Kuck, Managing Partner
    Kuck Immigration Partners

    We are frequently asked what obligation does an employer have when it terminates a foreign national employee, and what options are available to the foreign national employee if he is terminated. This memo provides guidance to employers in dealing with immigration matters for the employee who is terminated, with or without cause, or who chooses to leave the employer. Employers terminating foreign employees should also consider arranging for immigration counsel to advise foreign employees on the consequences of termination as one of the services provided to workers being terminated.

    The foreign national employees referred to here do not include lawful permanent residents or U.S. citizens. Foreign national nonimmigrant workers usually fall under the H-1B, L, E, O, and TN temporary work visa categories. The most common nonimmigrant work visa, H-1B, is used for an “alien who is coming to perform services in a specialty occupation.” L visas are used for intra-company transferees that enter the U.S. to render services “in a capacity that is managerial, executive, or involves specialized knowledge. E visas are used for “treaty traders and investors” as well as Australian specialty occupation workers. O-1 visas are used for foreign nationals who can demonstrate the sustained national or international acclaim and recognition for achievements in the science, education, business or athletics. TN visas are used for Canadian and Mexican citizens to engage in business activities at a professional level as listed in the North American Free Trade Agreement.

    Nonimmigrant work visas are generally issued for the specific employment with a particular employer. A foreign employee is authorized to remain in the United States as long as they are employed with the particular employer noted in the visa application. If the foreign employees are laid off, they immediately lose their visa status, and must pursue one of four options outlined below.

    The immigration laws define a “lay off” as an action taken by an employer to cause the loss of a worker’s employment. A lay off does not include:
    • Loss of employment for inadequate performance;
    • A loss of employment for violation of workplace rules;
    • Voluntary departure or retirement;
    • The expiration of an employment grant or contract.
    A corporation laying off foreign workers must comply with the affirmative duties under immigration law with respect to those foreign workers. For most employment-related visa types, the employer has an affirmative responsibility to notify the U.S. Citizenship and Immigration Service (USCIS) Service Center which approved the petition underlying the foreign national’s visa, when terminating a foreign worker’s employment. The employer’s payment obligation under the immigration law ends when there is a bona-fide termination of employment AND the employer also notifies the USCIS. The notice to the USCIS fulfills the requirements for bona-fide termination of employment.

    These affirmative responsibilities are particularly important because employers that do not comply with these obligations violate the immigration rules and are subject to various penalties, including back wages. We include some brief explanations of the affirmative responsibilities employers incur when laying off foreign national employees:

    Laying off H-1B foreign workers

    The employer must offer to provide the H-1B workers return transportation to their home country at the employer’s expense. This is an airfare cost only, and only for the foreign national employee. It is not for his spouse, children, home furnishing or a dog.
    The employer must notify the USCIS of the termination of foreign workers’ employment.

    Laying off other nonimmigrant foreign workers

    Notify the USCIS of the termination of foreign workers’ employment.

    The employer should also ensure that the foreign national worker understands his or her options upon termination.

    Essentially, there exist four options in most cases for the foreign national employee:

    • The employee can leave the United States immediately. Remember, there is no grace period currently in place for any nonimmigrant work visa (H, L, E, O, TN) unless the employee has completed the fully authorized term of employment. There is NO grace period in which an employee has a set amount of time to leave;
    • The employee can file for a change of status to visitor visa status (B-2), with proof of intended departure date, verification of support pending departure, and a valid reason for remaining (e.g., packing household goods, etc.). This application for change of status to visitor should occur prior to the expiration of any time period of severance, and is best filed while the employee is still employed. This request to remain can be for up to six (6) months;
    • The employee can file to change employers and remain in that visa status. This means, obviously, that the employee must already have an offer of employment from another employer. The same process is in place that obtained the current nonimmigrant status for the employee. The employee must also file this change of employer petition while still in lawful status (e.g. during a severance period or while still employed); and
    • The employee can enroll in or return to school. This means the employee enrolls in a university to seek a degree, typically a higher degree, and seeks to change status to that of a student visa holder (F-1). Obviously, there are serious costs associated with this option, as the employee must pay tuition and related expenses, and typically will not be allowed to work, unless the employee enrolls in a degree program that allows Curricular Practical Training (CPR). Again, this change of status petition must be filed while the employee is still “in status,” as noted above.
    Layoffs and terminations are difficult for all parties involved. Properly managed, both the employer and employee can come through this situation fully protected and compliant with all federal immigration laws. If you would like further information about specific case scenarios or situations, please call our office or email us at ckuck@immigration.net to speak to one of experienced immigration attorneys.
  • 22 Dec 2014 9:49 AM | Anonymous member (Administrator)
    Source: Labor & Employment Law Perspectives
    Posted By Felicia S. O'Connor 

    Under current OSHA rules, employers must keep and retain certain records of workplace injuries, and if an employer neglects to keep the required records, OSHA can issue citations for the employer’s lack of compliance. However, there is currently a six-month time limit on how far into the past OSHA may reach to cite employers for not following the record keeping requirements. OSHA is now taking steps to change the time period to the full five years that individual records must be retained.

    OSHA regulations, as they stand today, require employers to record information about work-related injuries and illnesses in three ways. First, employers must prepare an incident report within seven days of receiving information that a recordable injury or illness has occurred. Second, they must also create a separate injury log within seven days. Finally, employers need to prepare a year-end summary report of all recordable injuries during the calendar year. All of these documents have to be saved for five years from the end of the calendar year the records cover. Failure to follow these requirements can lead to citations from OSHA.

    In a 2012 federal appellate court case, OSHA unsuccessfully attempted to argue that any violation in the five-year period should be considered a “continuing violation.” This means that the employer, if it violates the statute at any time in the five years, is considered in violation on a continual basis for the entire time it is required to maintain those particular records. By using this argument, OSHA attempted to circumvent the six-month statute of limitations for the issuance of citations. If the court agreed, OSHA could then reach back into any time in the past five years to issue citations. The court rejected the argument and confirmed that OSHA is limited in their ability to cite violators to any alleged violations that have taken place in the last six months. However, OSHA was not deterred by the appellate court’s decision and is trying to find a new way to reach farther back into employer records to cite previous violations of the recordkeeping rules.

    On December 4, 2014, OSHA held a meeting of the Advisory Committee on Construction Safety and Health (ACCSH). ACCSH is an advisory committee that gives advice and assistance to OSHA regarding construction standards with 15 members comprised of representatives for employers, employees, and federal, state, and public representatives. At the meeting, OSHA sought a recommendation from ACCSH on whether it (OSHA) should issue a proposed rule amending the regulations to clarify that the recordkeeping requirements constitute an ongoing obligation for the employer. After discussion at the meeting, ACCSH agreed with OSHA and recommended that they issue a Notice of Proposed Rulemaking, which would make the changes OSHA desires. The next step in the process will be for OSHA to issue the Notice of Proposed Rulemaking.

    It is important to note that the proposed rule does not change any requirements for employers. All of the rules regarding keeping and retaining records remain the same. The only thing that may change if the rule is adopted is OSHA’s ability to cite violators. For employers who strictly follow the OSHA requirements for recordkeeping and retention, the rule imposes no extra risk and no cause for alarm. If, however, an employer’s recordkeeping compliance is not always what it should be, this proposed rule should serve as a strong reminder that OSHA takes these employer obligations seriously. Luckily, there is plenty of notice built into the rule-making process. Employers have time to review their recordkeeping processes and make any necessary changes to ensure compliance prior to the implementation of any future rule on the subject.
  • 25 Nov 2014 11:54 AM | Anonymous member (Administrator)
    By: Charles Kuck
    Kuck Immigration Partners

    It comes as no surprise to people in the restaurant industry that many immigrants are currently working in our kitchens, cooking, cleaning and serving. President Obama’s Executive Action provides an opportunity for some of those immigrants to seek employment authorization. Having received a number of calls from our clients who own restaurants, there is clearly a great interest in helping those who make the food happen! This article outlines what the program announced by Obama is, who can qualify, and when this will happen. While not everyone is in agreement on how the President did this, the reality is that it is now a very real opportunity for many people to fix this current immigration situation.

    What You Need to Know About Deferred Action for Parents – DAPA

    On November 20, 2014, President Obama announced that deferred action would be approved for certain parents of U.S. citizens or permanent residents. Deferred Action is simply a stopping of the deportation process. It is NOT an amnesty; no one is getting permanent resident or citizenship through this. The program is called Deferred Action for Parent Accountability or DAPA. DAPA has the same benefits that were given to those who arrived in childhood (DACA- deferred action)--a work permit and temporary stay of deportation. By doing this, the President hopes to make it easier to deport people who should be deported first, and allowing families of undocumented immigrant who live within the parameters of the law to remain together.

    Who Qualifies?

    • A person must be the parent or step-parent of a US citizen or legal permanent resident, as of November 20, 2014.
    • A person must have continuously resided in the United States since January 1, 2010.
    • A person must be physically present in the United States on November 20, 2014 and the date they apply for DAPA.
    • A person cannot have had legal status on the November 20, 2014.
    • A person must NOT be a priority for deportation, e.g. they must not have a felony conviction or a serious misdemeanor.
    When Can The Application Be Filed?

    President Obama has instructed USCIS to be ready to accept applications for DAPA within 180 days. We anticipate that DAPA applications can be filed in May 2015.
    No Application Can Be Filed Now!

    This is important. Although we know more or less what forms and documentation are required, if a person applies before the permissible time, they will lose their payment and the case will be denied or rejected. There will be many unscrupulous “notarios” and unethical lawyers willing to take people’s money and offer to file their applications now. However, now is the time to get ready to file, so that the application is ready to go when the dates of permissible filing are announced.

    What Can Be Done To Prepare For DAPA?

    A person can get ready to file a DAPA application by doing the following:
    • Save money! USCIS Fees for applying will be around $ 465.00, plus attorney’s fees.
    • Make an appointment right away with an experienced immigration lawyer, if a person has a criminal problem, to determine whether it may affect the application for DAPA.
    • Get a passport! Waiting until May to apply for a passport at a foreign consulate will certainly put a person VERY long lines!
    • Gather documents. There are many documents that will be necessary prove DAPA eligibility. The following list of documents is a start of what will need to provide:
      • Two passport-size photos;
      • Copy of passport (page with biographical information, visa and I-94 forms, if available)
      • Copies of birth certificates for the applicant and the children, with translation;
      • Copy of marriage certificate or divorce, if applicable;
      • Copy of any court case, specifically criminal convictions, and copies of any police report, and testing of all traffic fines have been paid;
      • Copies of any documents you have if you have had prior contact with ICE or USCIS (people with deportation orders ARE eligible to apply);
      • Copies of school transcripts, grade, and other evidence of its attendance, if any;
      • Copies of medical or dental records,
      • Bank statements, tax returns, rental agreement or copies of rent payments, pay stubs, remittance receipts, or any other document with a person’s name and date,
      • Affidavit of relatives, friends, teachers, employers, neighbors, attesting to their presence in the United States;
      • Pictures that show a person in the United States on or before January 1, 2010; and
      • Facebook Pages or other electronic evidence of presence in the U.S. on January 1, 2010 and November 20, 2014
    What Else Should A Potential Applicant Know?

    At the end of the day, DAPA is a temporary process. The work permit that comes with it is valid for three years. We do not know what will happen with a new president, or if Congress will try to change it (unsuccessfully without the signature of the President). It will also be important to always keep looking for other options and ways to immigrate. For example, a person can immigrant through her adult U.S. citizen children or a U.S. citizen or Permanent Resident spouse citizen or resident, or through their work, once they have had DAPA..

    DAPA will give a person the option to also ask for permission to travel abroad under what is called "Advance Parole". There is no GUARANTEE it would be approved, but if it is, a person can travel to their country without fear of returning, and may use this legal entry to legally immigrate to the U.S. through other processes.

    Also, it is important to remember that this benefit is one which is based on discretion. It would be good to have information confirming the applicant is a person of good character. Letters from family members, pastors, employers, and friends confirming this would be useful in the application.

    Even people with deportation orders are qualified for DAPA. If the applicant is such a person, it is essential they talk to an experienced immigration lawyer and get a copy of their immigration file, so they can make sure everything is in order. Even those who were physically deported, if they returned before January 1, 2010, may apply if they have no criminal convictions.

    And, of course, if a person is looking for an experienced immigration attorney, regardless of who you pick, use the internet to check the lawyer out! Google and Avvo.com are excellent tools for assessing other’s experience with an attorney. Sometimes, the word of a cousin’s best friend’s sister cannot be trusted!

    In the end our advice is to take advantage of this opportunity. Even if only for a short time, a work permit can change a person’s life.

    If you have further questions, or we can help if DAPA, please call us today at 404-816-8611. Information in Spanish on DAPA is available at www.immigration.net/es/DAPA.

  • 17 Nov 2014 10:35 AM | Anonymous member (Administrator)
    By: Charles Kuck
    Kuck Immigration Partners 

    From FoxNews we learn that President Obama is considering a 10 point Executive Action on immigration. We will walk through each of these 10 items and give you a real life perspective of what they mean, who it would affect, and how "good" it is. But, to note, the most important thing he can do is not on this list--count only principal immigrant applicants, rather than all family members when it comes to family legal immigration quota totals. That appears to be off the table, for now.

    The 10 points of the draft plan, as outlined by FoxNews, are as follows, with my commentary on each item.

    Expand ‘deferred action’ for young illegal immigrants
    This would expand a major step taken by Obama in June 2012. In June 2012, Obama offered a deportation reprieve – a.k.a., deferred action -- for undocumented immigrants who came to the U.S. as children, entered before June 2007 and were under 31 as of June 2012.

    The change would expand that to cover anyone who entered before they were 16, and change the cut-off from June 2007 to Jan. 1, 2010. Obama estimates this would make nearly 300,000 additional undocumented immigrants eligible. I doubt this many more would eligible, and, only a third of those legible under the current deferred action have applied. Look for around 100,000 to apply for this. This seems a likely easy fix for the president, and court has already held that the president has authority to do this.

    Expand ‘deferred action’ for parents of U.S. citizens and legal permanent residents
    This would significantly expand the above program by also giving a reprieve to illegal immigrants who have been in the U.S. for more than five years and have children who are U.S. citizens or legal permanent residents. This is the first of the big three proposals.

    This could allow upwards of 4.5 million illegal immigrant adults to stay, according to estimates. That sounds about right, but could on less than half applying, for a variety of reasons, including costs, proof, and fear.

    Sen. Jeff Sessions, R-Ala., voiced concerns that illegal immigrants could simply fib in order to meet the criteria for this program. Further, he said millions more people would then be “entitled” to U.S. privileges including health care.

    Of course Jeff Sessions is lying, but that does not stop FoxNews from printing it without fact checking him. The immigrants who apply under this proposal do not receive any legal status. They would merely have a stay of deportation, like the kids who have DACA. They would not be eligible for any public benefits, and would lot be eligible for Obamacare, which specifically excludes anyone who is it a permanent resident. Also, USCIS is excellent at detecting fraud in 2014, something that Legacy INS was not so good at in 1986. Will people lie to try to get this benefit, yes, like in all government benefit programs. Will they be successful, not likely.

    Prioritize deportations for serious criminals
    This would be a Department of Homeland Security-wide enforcement policy to prioritize deportations for serious criminals and other individuals deemed a threat – including gang members.

    ICE already does this to a large extent. There is no doubt that the random serious criminal is not deported, but that is infrequent. Spending more money on this type of program because they are not focused on traffic infractions will be a huge success for ICE.

    “Our national security suffers whenever we spend precious enforcement resources on hardworking immigrant families, rather than on criminals and those who mean our communities harm, . . . .”

    End ‘Secure Communities’ and start a new program
    Obama would discontinue the “Secure Communities” program. Under this program, ICE takes fingerprint information that it gets from local jails and checks it against immigration databases. Immigration and Customs Enforcement then places a "Hold" on the immigrant, which frequently leads to deportation, more than 2 million times since Obama has been President, and frequently of non-criminal foreign nationals.

    Hundreds of thousands of “criminal aliens” have been deported this way.

    The plan calls for replacing this with another, unspecified program. Obviously, he will have to replace this with another program, but computer tracking of actual criminals is much easier today than ever before. Look for a "Secure Communities" light.

    Boost pay for ICE officers
    This calls for a pay raise for Immigration and Customs Enforcement officers, to “increase morale.” Earlier this year, the National ICE Council – the union representing ICE workers – called for more funding for the agency. I don't know where Obama is going to get this money, if Congress does not allocate it.

    Expand high-tech visas
    The plan calls for working with the State Department to expand visas for foreign-born workers with high-tech skills, to support U.S. businesses. This is projected to offer another half-million immigrants a path to citizenship.

    This is a little vague. Once way to do this is to not count foreign national family members when the principal is immigrating through employment. This would virtually eliminate the backlog of visas for all nations. Obama could also allow the spouses of H-1B visas to work, he could modify the definition of "extraordinary ability for O-1 visas, and he could expand the ability of a company to obtain cap-exempt H-1B visas for companies at or affiliated with a University. What Obama cannot do is increase the number of H-1B visas subject to the cap each April. Expect continued lotteries for the standard H-1B. This point is very vague.

    Strengthen border security
    The plan would commit additional resources to the U.S.-Mexico border to deal with uncoudme red immigrant traffic, partly in response to the surge over the summer of undocumented children from Central America. Of course these children were applying for asylum, which is a treaty obligation we have. We were and are not allowed to turn these kids away.

    This sounds great in practice, but this is the part of the plan Obama needs to sell and actually perform on to stop what some will say will be another large migration of undocumented people, coming in response to the Executive Action. Clearly putting children in jail is not working as a deterrent. The biggest deterrent would be a functioning legal immigration system that lets family members come quickly, reduces lines and matches willing workers with employers who need their services in a logical functional way. GOP Congress, are you listening?

    Expand provisional waivers to spouses and children of legal permanent residents
    This would be the second of the big three parts of this plan. He would expand a wildly successful provisional waiver program in place since March 2013 for undocumented spouses and children of permanent residents and U.S. citizens. This change is easy, it is simply a one line update to the already existing policy memo. Hundreds of thousands of folks would qualify to finally, safely reunite, without spending more than a year apart waiting for a waiver abroad. They would process the waiver here, travel to the consulate for their interivew with their approved waiver in hand, and reenter the US usually less than 10 days later. Obama cannot eliminate the requirement that the person leave the US to visa process, unless--see below!

    Expand ‘parole’
    The government currently allows “parole in place" for undocumented immigrant parents and spouses of U.S. military members – effectively letting them change to “parole” status in the United States if they are already in the country. This, with what is now a legal entry, they can adjust their status in the U.S. to permanent residence as immediate relatives, if their child is 21 years old.

    Obama is considering expanding the program for undocumented immigrants whose children are citizens. This is the 900 pound gorilla in this proposal. It would allow almost 3 million undocumented immigrants obtain permanent residence through their children, not necessarily right away, but when the child turns 21. This solves a major problem with our waiver law, which requires consular processing for folks who entered undocumented, but who cannot apply for a waiver through the children, as there is no waiver in the law.

    Promote the naturalization process
    Currently, the naturalization fee is $680. To encourage people to begin the citizenship process, DHS would take 50 percent off the fee for the first 10,000 applicants. What can I say besides, it's about time. This fee is far too high for many folks. Obviously it will be tied to income, and justifiably so.

    And, that is it, there are many other things Obama can do, and we have explained how he has this authority. Now we need to see if he has the spine to make it happen, because it will relese a torrent of vitriol from the anti-immigration portion of the GOP.

    Finally, please understand, NOTHING is final. Do not Hire or pay anyone to do anything. But you need to prepare for this, so begin gathering your tax returns for the last 10 years, get evidence of your physical presence, take pictures of yourself i the US today with today's papers, send facebook messages and document where you work, where you go to Church, and who you spend time with. Save your receipts of rent, payments, and money transfers. And, of course, save your money, because this will not be free. Since Congress will likely refuse to fund this, these changes will all need to be self-funded. Expect government filing fees of around $1,000.
  • 06 Nov 2014 2:39 PM | Anonymous member (Administrator)
    By: Bryan A. Stillwagon
    Sherman & Howard L.L.C.

    Recently, OSHA announced a revision to its recordkeeping requirements that will update the list of industries that are required to keep injury and illness records. The new requirements go into effect on January 1, 2015. Some industries that were previously required to maintain injury and illness records will not be required to do so as of next year. However, many previously exempt industries are now required to keep such records. Below is a list, by NAICS Code, of the industries that will now be required to keep injury and illness records that had not been required to do so previously. Note that the food and beverage industry is affected by several categories.
    • 3118 Bakeries and tortilla manufacturing
    • 4411 Automobile dealers
    • 4413 Automotive parts, accessories, and tire stores
    • 4441 Building material and supplies dealers
    • 4452 Specialty food stores
    • 4453 Beer, wine, and liquor stores
    • 4539 Other miscellaneous store retailers
    • 4543 Direct selling establishments
    • 5311 Lessors of real estate
    • 5313 Activities related to real estate
    • 5322 Consumer goods rental
    • 5324 Commercial and industrial machinery and equipment rental and leasing
    • 5419 Other professional, scientific, and technical services
    • 5612 Facilities support services
    • 5617 Services to buildings and dwellings
    • 5619 Other support services
    • 6219 Other ambulatory health care services
    • 6241 Individual and family services
    • 6242 Community food and housing, and emergency and other relief services
    • 7111 Performing arts companies
    • 7113 Promoters of performing arts, sports, and similar events
    • 7121 Museums, historical sites, and similar institutions
    • 7139 Other amusement and recreation industries
    • 7223 Special food services
    • 8129 Other personal services
    If your business falls under one of these classifications, please consult OSHA’s recordkeeping website (https://www.osha.gov/recordkeeping2014/records.html) for instructions on how to complete and maintain these forms. For employers that have been required to keep injury and illness records in the past, please check this website to determine if your industry is still covered. Please note that establishments with 10 or fewer employees at all times in the previous year continue to be exempt from keeping OSHA records, regardless of their industry classification.

    If you have any questions, feel free to contact Bryan Stillwagon of Sherman & Howard LLC at (404) 567-4372.
  • 03 Nov 2014 2:35 PM | Anonymous member (Administrator)
    Source: Elarbee Thompson

    by Patrick Lail

    [Elarbee Thompson]felt it would be beneficial to share some of the most common questions we are receiving from our clients about Ebola and their employees' fears about it. Although the specific circumstances of each employer may vary and call for a modified response, we hope this general information contributes to a measured and appropriate response to the issues raised by this developing situation.
    • Where can I get information about Ebola?

      We recommend following informed and updated sources for current information about the disease - such as the CDC and the World Health Organization. Such sources, rather than general media, provide a sound basis for managing and addressing employees' worries and concerns. Prudent employers will also monitor the mood and morale of employees with regard to the disease, and craft tailored educational responses to address the specific issues causing concern.

    • Can I place an employee who may have been exposed to Ebola on paid leave for the 21-day incubation period to avoid any risk to other employees and customers?

      Yes, although this approach carries some potential liability. For example, placing an asymptomatic employee on leave could give rise to a claim that the employer has "regarded" the employee as disabled in violation of the Americans with Disabilities Act (ADA). Also, if the employer unilaterally places the employee on leave and the employee is presently asymptomatic, the leave should not be counted against the employee's leave entitlement under the Family and Medical Leave Act (FMLA).
    On the other hand, if an employee displays Ebola symptoms and has traveled to West Africa or has otherwise been exposed to the virus, the employee likely presents an ADA "direct threat" of harm to himself or others, and an employer's action of placing the employee on leave is not likely to give rise to ADA liability. The latter facts would also support the application of FMLA leave. In any event, paying the employee during any such leave makes it less likely the employee would raise a claim and, if a claim were asserted, paid leave may deprive the employee of meaningful damages.
    • What can I do about employees who refuse to work with someone whom they believe has been exposed to Ebola?
    First, we recommend that employers take employees' concerns seriously and respond with education from the sites listed in the first question above. While Ebola is a scary virus, scientists have determined it is transmissible only at certain stages of the disease and only through bodily fluids (i.e., it is not an airborne disease).
    Second, employers should be mindful that employees have rights under the Occupational Safety and Health Act (OSHA) and the National Labor Relations Act to protect themselves from imminent danger and to speak out about potential risks in the workplace. An employee's OSHA right not to work due to an imminent risk must be in good faith and is generally triggered only after asking the employer to eliminate the danger and the employer's refusal to do so. Thus, reluctance to work due to Ebola concerns should be taken seriously, and employers should engage in meaningful, documented dialogue about employees' concerns and the employer's response before resorting to discipline for failure to perform.
    As each situation is unique, we recommend that employers seek advice of counsel before making decisions about placing employees on leave, requiring medical clearance documentation based on Ebola concerns, or disciplining employees for failure to report to work or perform certain tasks. If you have questions about the unique circumstances your workplace or workforce present as they relate to the current Ebola situation, please contact your Elarbee Thompson attorney or respond to this email.
  • 29 Oct 2014 4:38 PM | Anonymous member (Administrator)
    By: Peter Dosik
    Shipe Dosik Law LLC

    Successful restaurateurs and entrepreneurs make taking care of customers their number one priority. Happy customers become regular customers and they tell others about their positive experience. Unhappy customers don’t come back and spread the word far and wide with their negative reviews.

    In a franchised brand, the franchisee occupies a layer between the franchisor/brand owner and the customer. It’s the franchisee that interacts directly with the customer.

    So the franchisor wonders: how do we force franchisees to take care of customers?

    Actually, that’s the wrong question. If the franchisor has to “force” franchisees to do anything, then the franchisor has already failed. The franchisor needs to reconsider its relationship with franchisees.

    Some franchisors view franchisees as mere revenue streams (or worse, as opponents that must be carefully watched and forced to toe the line). Better franchisors see their franchisees as “partners,” with both sides working together to better the brand.

    However, even those better franchisors are missing a fundamental key to success in franchising: franchisees are also your customers, so treat them like customers. After all, the franchisee is buying something from the franchisor -- the brand, the system, and ongoing support -- and expects to get value from the franchisor in return. More importantly, the logic about taking care of customers applies to franchisees just like it does to guests who come in the door. Happy franchisees build more units and tell prospective new franchisees how happy they are with the brand. Unhappy franchisees will not grow, and they will disparage the franchise system to any prospective franchisee who contacts them about buying a franchise.

    For more information or questions, contact Pete Dosik at (404) 692-3654 or via email at pete@shipedosiklaw.com.

  • 17 Oct 2014 11:39 AM | Anonymous member (Administrator)
    By: Bryan A. Stillwagon
    Sherman & Howard L.L.C.

    Rallies were recently organized across the nation by women’s rights and restaurant worker advocacy groups in response to a published study on sexual harassment in restaurants. According to the study, 90 percent of female employees and 70 percent of male employees reported experiencing sexual harassment by customers. Although managers may be trained on how to respond to an employee’s complaint of harassment by a fellow employee, it is not unusual for managers to brush off complaints of customer misconduct. The customers are, after all, spending money at the restaurant and (hopefully) tipping for the service. What’s the risk of turning a blind eye?

    As federal courts across the country have made clear, the risk of inaction is immense. When the harassment comes from a customer, courts apply a negligence theory of liability. This means employers are liable for the customer’s sexual harassment if the employer knew or should have known of the conduct and failed to respond. Two cases illustrate this well.

    In Lockard v. Pizza Hut, Inc., two male customers regularly made sexually offensive comments to a female waitress. One evening, one of the men told the waitress she “smelled good” and asked what cologne she was wearing. She told him it was none of his business, and he responded by pulling her hair. The waitress immediately reported the incident to her supervisor, said she did not want to continue waiting on the customers, and requested for another employee to serve the customers. Her supervisor denied her request, stating “You wait on them. You were hired to be a waitress. You waitress.” When the waitress returned to the table, the customer “pulled her to him by the hair, grabbed her breast, and put his mouth on her breast.” The waitress immediately told her supervisor she was quitting. Soon thereafter, she filed an EEOC complaint and then sued Pizza Hut and the franchisee. Finding the franchisee vicariously liable for the customers’ conduct, the appellate court upheld a $200,000 jury verdict against the franchisee for putting the waitress in an “abusive and potentially dangerous situation.”

    Contrast that scenario with Hallberg v. Eat’n Park, where a waitress alleged she was sexually harassed by a regular customer who made sexual propositions to her. The waitress reported the incident, and the restaurant manager promptly informed the customer he would be barred from the establishment if there were any more sexually explicit incidents. The court ruled in favor of the restaurant because it took prompt, remedial action in response to the harassment.

    As with other areas of harassment, training is vital. A harassment policy must prohibit misconduct by customers and vendors in addition to that by employees, and employees must be trained on the policy. Instruct all employees to report harassment, and ensure they know to whom they should report. Finally, train managers and supervisors how to react to harassment complaints, and remind employees that there will be no retaliation for making such complaints.

    Losing one harassing customer’s business is not worth the enormous liability that can attach if the restaurant chooses to look the other way.

    For questions, contact Bryan A. Stillwagon at (404) 567-4372 or via email.

  • 17 Sep 2014 8:35 AM | Anonymous member (Administrator)

    By: Kuck Immigration Partners 

    Whenever new immigration changes are talked about, those that prey on immigrants come out of the dark corners like cockroaches. That is exactly what is happening now! Be on the lookout, be warned, and warn others to avoid immigration-related scams. Several different types of scams reported recently include:

    • Scammers are targeting people based on foreign-sounding names or based on information gathered about companies hiring many H-1Bs. The scammers can get a lot of information from various websites, labor condition application listings from the Department of Labor, LinkedIn, social media and other sources. Scammers are able to collect information in a variety of ways and use it to convince unwitting victims of their purported authenticity.
    • Scammers claiming to be from the Department of Homeland Security or U.S. Citizenship and Immigration Services. They call and state that the victim's paperwork has problems and threaten to deport the victim or to send authorities to the person's home if he or she does not cooperate. They then order the person to go to the nearest convenience store, obtain merchant cards or vouchers for a certain amount of money, and provide the voucher numbers over the phone. Once the scammers obtain the voucher numbers, they disconnect the call and disappear with the victim's money.
    • Scammers claiming to be from the Internal Revenue Service, who state that the victim owes back taxes and ordering them to provide merchant card or voucher numbers, then disappearing with the victim's money.
    • Scammers who use "Caller ID spoofing" to display a telephone number that is not really their own, and that may appear to be from a legitimate government agency.
    • Scammers who send e-mails claiming that the recipient is a Diversity Visa lottery winner and must send in a fee. The Department of State does not send e-mails to applicants.
    • Scammers who claim faster processing times or guarantee visas, work authorizations, or green cards, for a fee.
    Government agencies never conduct business in this manner. A call demanding money and threatening negative consequences if it's not paid immediately is a scam, and those receiving such calls should hang up immediately and not provide any information. USCIS notes: "USCIS will not call you to ask for any form of payment over the phone. Don’t give payment over the phone to anyone who claims to be a USCIS official."

    Scams can be reported to the Federal Trade Commission at https://www.ftccomplaintassistant.gov. See also USCIS's scam information page at http://www.uscis.gov/avoidscams to learn where to report scams. USCIS lists common immigration-related scams at http://www.uscis.gov/avoid-scams/common-scams

    Contact us if you need more information or help in particular cases at (404) 816-8611 or at www.immigration.net.

  • 07 Aug 2014 10:42 AM | Anonymous member (Administrator)
    By: Ed Cherof & Evan Rosen of Jackson Lewis, P.C.

    According to the general counsel of the National Labor Relations Board (the “Board”), franchisors may now be held jointly liable for the unfair labor practices of its franchisees. This decision, which was issued on Tuesday of last week, flies in the face of decades of established law and creates a considerable liability risk for restaurant franchisors that may not have much control over the employment practices of its franchisees.

    Background for the Decision
    Over the past two years there has been a concerted effort on behalf of some fast food workers, spearheaded by the Service Employees International Union, to take collective action to push for a $15 minimum wage. As part of that effort, fast food workers, including those at McDonald’s franchisees, have engaged in one day strikes, picketing, and other related activities. Similar one-day strikes took place in Atlanta, Georgia in August 2013 and May 2014. As an outgrowth of these activities, 181 unfair labor practice charges were filed against McDonald’s and its franchisees alleging violations of the National Labor Relations Act (the “Act”) for illegally terminating, threatening, penalizing or otherwise coercing employees and unlawfully restraining their ability to engage in protected concerted activity.

    The Board’s general counsel, Richard Griffin, found merit to 43 of these claims and specifically stated that he would include McDonald’s, the franchisor, liable as a joint employer. In doing so, the Board is indicating its intent to make it significantly easier to find joint employer liability. The upshot of this ruling is that the franchisor may be responsible, and held liable, for its franchisees employment decisions, even though the franchisor did not have any role in the personnel decisions at issue.

    Unfair Labor Practices in the Southeast
    The general counsel’s ruling is particularly concerning for restaurant franchisors in the southeast for at least two reasons. First, it comes on the heels of a significant and noticeable uptick in unfair labor practice charges filed against local restaurant groups. Over the past eight months, at least 54 unfair labor practice charges have been filed about restaurant chains in the southeast, including many in Georgia. Typically in these cases, the restaurant chain did not have employees represented by a union. Instead, these cases generally involve non-union employees who file a charge (often with the assistance of a union) against their employer for allegedly restraining their right to engage in protected concerted activity.

    Under Section 7 of the Act, employees have the right to engage in collective action to improve their wages, hours or working conditions. Some examples of protected concerted activity include one day strikes; group meetings with a supervisor to complain about wages, hours, or working conditions; groups complaints to the media; Facebook or Twitter posts about working conditions that are collective in nature, etc. Except in very limited circumstances, an employer may not discipline, discharge or threaten employees with discipline for engaging in such activities. Employers who violate the Act may have to pay employees back pay, reinstate the employee, expunge any discipline from the employee’s record, post a notice about the company’s unlawful actions in a visible location, and spend the time and expense of defending against these cases. In addition, the Board may determine that the company’s policy is unlawful and require the company to rescind or rewrite it.

    Unions are using these unfair labor practices as a means to attract support for their organizing efforts. If, as expected, the Board modifies its union election rules in the coming months, it will be significantly easier for unions to organize employees and it will create an added incentive for unions to tap into new markets that have traditionally remained union-free, like the southeast.

    Setting a Precedent for Franchisor Liability
    The second issue that is concerning for restaurant franchisors about this decision is the precedent it may set for other government agencies. If the Board is willing to hold franchisors liable for its franchisees actions, it is certainly possible, that other government agencies, such as the Equal Employment Opportunity Commission, Department of Labor, and other organizations will follow suit. This could create a firestorm of potential liability for franchisors because it would require franchisors to defend against individual and collective claims brought against its franchisees for harassment, discrimination, retaliation, wage-hour violations and other similar allegations. Even if the franchisor ultimately prevails, the time and expense of defending against these actions will impact profitability and serve as a nuisance.

    What to Do Now
    As a consequence of this ruling, Georgia restaurant franchisors should:
    1. Consult with experienced employment counsel to assess the possible risks this decision has on the franchisor’s operations;
    2. Review and revise company policies to ensure compliance with Section 7 of the Act and other applicable employment laws;
    3. Consider whether it is appropriate to increase management training on compliance of employment laws and on effective labor relations not just for corporate staff, but also for owners/managers of franchisees;
    4. Review their franchise agreements; and
    5. Audit the level of control the franchisor has over its franchisees and determine whether more or less control is warranted.
    Jackson Lewis attorneys are available to discuss the general counsel’s decision and the impact it will have on your business, as well as other workplace law issues. Please contact Ed Cherof (CherofE@jacksonlewis.com or 404.586.1851), Evan Rosen (evan.rosen@jacksonlewis.com or 404.586.1837), or the Jackson Lewis attorney with whom you regularly work with.

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