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Authored by: Bob McCrie
The following article is from the March 2012 issue of Security Letter:
The Patient Protection and Affordable Care Act is looming with a major change. Of course, thousands of contract security guards have access to healthcare insurance provided directly by their employer, through their spouse, or self-funded. But a great majority doesn’t have coverage. That will change.

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According to Waiterpay, “Graham Elliot,” a popular Chicago restaurant owned by Celebrity Chef Graham Elliot, has been sued by a former waiter who claims that the restaurant maintained an illegal tip pool which included cooks and food runners, positions which do not customarily receive tips.

According to the Complaint, Gregory Curtis, who worked as a server at the restaurant, alleges that the restaurant violated the Fair Labor Standards Act by requiring waiters and waitresses to share a percentage of their tips with employees who do not customarily and regularly receive tips because they have little to no interaction with customers. As a result of the illegal tip pool, Curtis claims that his minimum wage should have been at the full minimum wage rather than at the tipped minimum wage, which is at a reduced rate. In other words, lawyers for the waiter argue that the restaurant should not be entitled to take a tip credit because it maintained an illegal tip pool. The lawsuit seeks to recover unpaid wages, compensatory damages and attorneys’ fees.
For more information about this topic, contact Rick Casmass at Valiant.
This article, from Human Resource Executive Online, does a great job of explaining the benefits—and potential pitfalls—of moving your “old school” time and attendance systems to technologically based ones:

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According to an article in Nation’s Restaurant News, the California Supreme Court is expected to rule in mid April on a landmark case about meal and rest breaks that could have a significant impact on all employers in the state.

Restaurant operators across the country who operate in California hope the long-awaited ruling, which is expected by April 12, will clarify what many see as ambiguous state laws regarding meal and rest breaks.
“For more than a decade, California employers have been left to guess what their legal obligation is,” under the state’s meal- and rest-break regulations, said attorney Julie Dunne of Littler Mendelson in San Diego.
Restaurant companies have been sued often, spending millions on legal battles and settlements, she noted. “This case is anticipated to finally offer some clarity … and it should bring a significant reduction in the lawsuits.”
A key question before the state Supreme Court is whether employers must ensure meal breaks for employees, or simply make them available. The court is also expected to determine whether such cases can be filed as class actions.
The case, Brinker v. Superior Court, stems from a lawsuit filed in 2004 against Chili’s parent Brinker International. The original lawsuit, Hohnbaum v. Brinker Restaurant Corp., was filed by five employees who claimed the company illegally denied them meal breaks for every five hours worked, as required by California law.
The complaint was later certified as a class-action lawsuit that was estimated to include potentially up to 63,000 current and former employees.
Brinker officials have declined to comment on the pending case, but attorneys for Dallas-based Brinker have argued that meal periods need only be provided, allowing workers the right to pass on their breaks if they choose.
How a manager handled a break period should also be decided on an individual basis, the company’s attorneys argued, not as a class action.
Timing of the break period is of particular interest to restaurants, as servers may not want to take a mandated 30-minute meal break if it means missing out on a tip.
Awaiting the state Supreme Court ruling are several pending meal- and rest-break lawsuits involving restaurant companies, including one filed in 2010 against Chipotle Mexican Grill.
Dunne said the Supreme Court could issue a decision on a prospective basis, which essentially would hold employers harmless for actions in the past, when the regulations were considered unclear.
For example, if the court decides that employers must ensure that meal and rest periods are taken at a certain time within the work day, the decision could apply from this point forward. Current cases in trial court would essentially be nullified because actions occurred before the law had been clarified.
For more information about this topic, contact Rick Casmass at Valiant.
Valiant is a proud sponsor of City Harvest‘s Summer in the City, a group dedicated to help people who don’t get enough to eat.
That’s why we’re urging you to watch an amazing documentary about childhood hunger that premieres this Saturday, April 14th at 8 pm Eastern on the Food Network.
The program is entitled Hunger Hits Home. It powerfully tells the story of hardworking American families who are struggling with hunger. They’re fathers like Oscar Walker, who says in the film, “I think the biggest misconception that we could ever have in America is that when a person works that they’re not gonna be hungry — that there’s no reason that they should go hungry. When that’s just the biggest misconception, the biggest lie that you could ever fathom.”
The documentary also profiles hunger heroes who are involved in the No Kid Hungry campaign, like Maryland Governor Martin O’Malley, who shares: “Our nation should be able to feed our children and if we can’t do that there’s not a lot of hope for anything else we hope to do as a people.”
We urge you to take the time to watch the documentary so that you can bear witness to the issue of hunger–particularly childhood hunger- in this country.
The Society for Human Resource Management reports that a chain of five Tai Show Japanese restaurants in New York’s Suffolk and Nassau Counties, and Tai Show President, Wen Chun Su, have agreed to a settlement of a U.S. Department of Labor lawsuit.

Tai Show will pay $764,796 in back wages, liquidated damages and interest to 161 employees, according to the terms of a consent judgment.
The lawsuit arose from an investigation by the Wage and Hour Division, finding that since 2008, Su and the five restaurants had violated the Fair Labor Standards Act’s (FLSA) minimum wage, overtime pay and recordkeeping provisions.
The Labor Department challenged an arrangement in which tipped and nontipped employees shared tips. It alleged that the restaurants violated the FLSA by not paying workers the required minimum wage and overtime rates and by not keeping and maintaining adequate and accurate records of employees, their work hours and their total straight time earnings for each workweek.
In addition, some employees were paid flat monthly salaries, without regard to hours worked, which did not meet the FLSA’s minimum wage or overtime requirements, according to the Department of Labor.
Irv Miljoner, the Wage and Hour Division’s Long Island district director, said, “This lawsuit and the resulting consent judgment that provides for back wages, liquidated damages and penalties underscore the Labor Department’s commitment to enforcing the law and removing the incentive to pay employees off the books. Other restaurants should take notice and ensure that they are paying their employees in compliance with the FLSA.”
If you’d like more information about restaurant compliance issues, contact Rick Casmass at Valiant.
According to WaiterPay.com, Kefi, a popular Upper West Side Greek restaurant owned by Food Network celebrity Michael Psilakis, has been sued by its waitstaff for wage theft, overtime, and minimum wage violations.
The complaint alleges that restaurant management regularly cut the hours of their bussers, runners, baristas, servers and bartenders, and paid them below minimum wage for all hours worked. The case against the restaurant states that servers often worked more than forty hours a week but were not compensated for their overtime hours. Lawyers for the workers also allege that the employees were improperly forced to share their tips with the managers of the restaurant and that restaurant management did not pay “spread of hours pay” which requires an extra hour of pay at minimum wage for every day the workday spans in excess of ten hours.
The lawsuit seeks tip credit damages, disgorgement of the tips that were improperly taken from the tip pool, payment of unpaid minimum wage, overtime, attorneys’ fees, and other remedies.
For more information about restaurant compliance issues, contact Rick Casmass at Valiant.
That was a cheap shot at a timeless Shakespearean line, but the question still stands: Should your organization move towards a hosted model for your business technology or should you stick with the traditional way?
Hosted solutions are the new trend in the arena of business software, especially because it offers a lot of options and flexibility, but the answer to the question varies from organization to organization. Here we decided to list out some of the advantages and disadvantages of hosted solutions, but maybe we should start by defining hosted applications: Hosted solutions or Saas (Software as a Service) are software models where the application and the data are hosted by a vendor and made available to clients through a network. “Cloud” has been a buzzword for hosted solutions recently, and generally speaking a cloud service is a hosted service that’s accessible over the internet.
Advantages:
➢Expertise: The vendor for your hosted service probably has specialists in many different fields. Networking, database administration, security, and other areas of activity that require expertise are handled by the vendor. That allows you to reduce your IT staff or leverage them in other areas.
➢Scalability: If your demand increases or decreases, vendors of hosted services can usually accommodate that change quickly. They are usually able to provide you with more storage or add more users to your license agreement in hours or even minutes. Also, in this scenario you would only pay for what you really need.
➢Support: Most vendors will offer support services with your subscription. That eliminates the need for you to have an in-house support desk to deal with IT issues. Also, the fact that you will probably pay for these services on a monthly basis (as opposed to yearly contracts), generates good service from the vendors. They know you can move to the competition with a few days notice, and they strive to keep you happy with their product.
➢Security: If you choose a vendor who passed a comprehensive audit of their processes and activities, you can have the peace of mind that your data is secure. Statement on Auditing Standard (SAS) No. 70 for Service Organizations is a widely recognized auditing standard and it often includes controls of information technology.
➢Fast Set Up: By eliminating the need to size, plan and order hardware and other equipment necessary to self host your storage and applications you arrive at a production-ready scenario much faster.
Disadvantages:
➢Integration Risks: If you are planning on integrating your hosted application with some of the other applications you already possess, make sure they are compatible. Your vendor should assist you in thinking about all possible scenarios and risks of this integration.
➢Limited Customization: A lot of hosted applications follow the “cookie cutter” approach, and don’t allow you to customize the tool for your needs to a large extent. During the discovery process, be sure to ask all vendors if they can address your specific needs.
➢Performance: One of the reasons hosted services are cheap, is the fact you are sharing resources with other organizations. If the vendor has not planned and sized the infrastructure appropriately, performance may be an issue.
There may be other things to consider when making your decision, but the points above will get you under way. When done correctly, hosted or cloud computing is a great way to reduce operating costs, increase efficiency and streamline operations.
That was a cheap shot at a timeless Shakespearean line, but the question still stands: Should your organization move towards a hosted model for your business technology or should you stick with the traditional way?
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I’ve been in the restaurant industry, in one form or another, for well over 20 years. In that time, I’ve seen some very smart owners make some of the very same mistakes, over and over. There are two issues in particular that I’d like to talk about. In both cases, owners are either leaving money on the table, or inviting the scrutiny of the Department of Labor.
First, let’s discuss “shift vs. hourly.” The cultural mindset of the restaurant industry is to pay employees by shift. The motivation isn’t to “short” anyone, owners just think it’s easier. But is it really? The truth is, if your restaurant has more than 50 employees, it’s very easy and convenient to generate payroll based on hourly pay. And in fact, if you pay all of your employees by shift, you run the very real risk of attracting the attention of the Labor Department. The DOL realizes that restaurants typically employ both shift and hourly employees, so if your payroll register is lopsided toward shift employees, it will stick out like a sore thumb if the DOL ever had occasion to be reviewing it.
I can tell you from personal experience that shift vs. hourly is one of the easiest compliance items to fix, if you have the proper knowledge.
Next is the meal allowance. Let’s say you’re the owner of a restaurant and you provide meals to your employees. If you’re not taking advantage of the meal allowance you are leaving money on the table.
But you’re not alone. Not taking the meal allowance is by far one of the most common mistakes I see restaurant owners make. Owners may think it’s “petty” to deduct a few dollars from their employees for meals, but the amount of money over the course of a year added back to your bottom line can be substantial.
For example, using the New York meal allowance of $2.50 per meal and 100 employees working 5 qualifying shifts a week the calculation of annual savings would be as follows:
$ 2.50 x 5 = $12.50 meal allowance per employee per week
$12.50 x 100 weeks = $ 1,250.00 total meal allowance per week
$1250.00 x 52 weeks = $ 65,000 SAVINGS PER YEAR
In addition, we often find that even if the meal allowance is being processed, it is done incorrectly. The tax law states that the meal allowance can be deducted from the employees gross wages BEFORE calculating certain employer taxes. This adds an additional $ 4,972.50 bringing the total of $ 69,972.50 back to the bottom line income of the restaurant.
What I tell my clients is, “Your employees don’t work for you for their minimum wage, they are there for their tips. Yet, the state bumps their pay a few cents an hour periodically and your bottom line takes a big hit. Here’s a rule of thumb that can help; when there’s a minimum wage increase, that’s the perfect time to institute a meal allowance policy you may not have taken advantage of in the past.
I’ve actually conducted employee meetings to explain to restaurant workers that if their boss takes all the allowances he or she is eligible for, it actually protects their jobs, because it can make the difference between him or her keeping the restaurant fully staffed.
So whether it’s shift vs. hourly, meal allowances, or any of the other restaurant employee-related issues, talk to an expert. Because the more you know, the more you can add to your bottom line.
If you’d like more information, email Rick Casmass at Valiant.
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