Tag: Food Service Industry

Predictive Scheduling Legislation: What You Need to Know to Avoid Costly Surprises

In approximately a dozen states and a number of smaller municipalities across the U.S., initiatives have been introduced that would allow state and local governments to dictate how restaurants (and retailers) schedule their employees. Some view this approach as interfering with employers’ rights to control the workplace, while others view it as a necessary tool to protect the rights of food industry and other retail workers.  The impetus for the new rules – often referred to as predictive scheduling laws – emanates from the fact that workers often have very little ability to make adjustments to their work schedules in order to meet their responsibilities outside of work.  Unpredictable and unstable work schedules have been fairly well documented in the food service and preparation industries, as well as in retail and custodial occupations.

Predictive scheduling laws and proposals generally include certain common provisions: (i) advance posting of schedules, (ii) employer penalties for unexpected schedule changes, (iii) record-keeping requirements, and (iv) prohibitions on requiring employees to find replacements for scheduled shifts if they are unable to work. In Congress, the pending Schedules That Work Act would require that schedules be provided in writing two weeks in advance with penalties for changes made with less than 24 hours’ notice.  As those changes are implemented, restaurant owners are finding that they must make significant adjustments to how they run their businesses in order to stay in business.

“On-call” or “predictive scheduling” activists argue that retail employers too often use scheduling practices that directly interfere with employees’ personal lives and ability to plan around their work hours, while others believe government intervention in the scheduling of employees through a one-size-fits-all approach intrudes on the employer-employee relationship and creates unnecessary mandates on how a business should operate.  Many in the food service industry are concerned that predictive scheduling legislation will impede employers’ need to adapt to changing conditions in a store, particularly small, independently owned businesses that have limited staff and resources and may not be able to afford the penalties related to violations.  Some employees have also voiced concern that they could lose some of the flexibility that attracted them to the food service industry in the first place.

There are a variety of common components of predictive scheduling legislation.

  • Employee Scheduling Requests.  Giving employees the right to make scheduling requests without employer retaliation.  Employers would be required to consider scheduling requests from all employees and provide a response. In some instances (for healthcare issues for example), the employer would be required to grant the request unless there is a bona fide business reason not to do so—e.g., an inability to reorganize work among existing staff or the insufficiency of work during the periods the employee proposes to work. The right to request provision can be found in laws recently enacted in Vermont, New Hampshire, Seattle, Washington, and San Francisco and Emeryville, California.  (Similar laws have been in place for more than a decade in the United Kingdom.)
  • Shift Scheduling Changes.  Requiring employers to be pay employees for a minimum of four hours of work or the minimum number of hours in the scheduled shifts, whichever is fewer, when an employee is sent home from work early without being permitted to work his or her scheduled shift.  In addition, if an employee is required to call in less than 24 hours before the start of a potential shift to learn whether he or she is scheduled to work, an employer could be required to pay the employee a premium, equivalent to one hour of pay. This provision is found in eight states and the District of Columbia.
  • Split shift pay. If an employee is required to work a shift with nonconsecutive hours with a break of more than one hour between work periods, an employer could be required to pay the employee a premium for that shift, equivalent to one hour of pay. Provisions like this exist in District of Columbia and California.
  • Advance notice of schedules. When an employee is hired, an employer could be required to disclose the minimum number of hours an employee will be scheduled to work. If that minimum number changes, the employer could be required to give the employee two weeks’ notice of the new minimum hours before the change goes into effect. In addition, employers can be required to give employees their work schedules two weeks in advance and, if an employer makes changes to this work schedule with notice of only 24 hours or less, the employer could be required to pay the employee a premium, equivalent to one hour of pay. San Francisco, Seattle, New York City, and Emeryville, California have enacted laws to require employers to provide two weeks’ advance notice of schedules to employees in certain large retail and/or food service establishments.

In order to handle predictive scheduling mandates, business owners should explore software options and even retaining outside vendors that provide scheduling and labor management solutions.  A lack of training or understanding of predictive scheduling can be detrimental to a business’ bottom line, and scheduling practices can have a dramatic impact on labor costs.  As with most new legal developments in the food service industry (or any industry for that matter), training and education is key.

 For more information on this and other issues, contact our office at 312-368-0100 or Jon Weis at jweis@lgattorneys.com

 

Essential Legal Matters: What Foodservice Operators Must Know

As any foodservice operator knows, the food business is changing daily.  Margins are thin, competition is fierce and fickle consumer demand and constantly changing dietary fads create increased daily pressure on operators. There numerous legal issues you should consider to give you a leg up. 

Type of Business Entity 

While many food service companies may operate as sole proprietorships, it is always better to operate under the umbrella of a legal entity that will protect you as the owner from personal liability.  This is particularly so in the food service industry where you are feeding people (or distributing to those who do) and interacting with a multitude of guests and employees.  Typically, a corporation or limited liability company (LLC) is the way to go.  And if you open in more than one location or operate separate food service businesses, you would be well advised to set up a separate corporation of LLC for each operation; this way only one entity’s assets will be at risk in the event of a lawsuit.

Intellectual Property Rights

Nearly every food service business creates intellectual property, and these assets can be very valuable in the highly competitive foodservice industry, particularly when your business becomes successful.

One of the most commonly used methods of protecting your food service business intellectual property rights is obtaining trademark protection for any distinctive marks, emblems or symbols or form of words.  The protected mark must be something that distinguishes your business from others and be distinctive, i.e., not something generic like “great food.”  In order to obtain the right to use a trademark, an application must be filed with the United States Patent & Trademark Office.  Most businesses retain an attorney to file the application.

Another form of intellectual property common in the foodservice sector are copyrights.  The purpose of a copyright is to protect creative work and to grant authors the exclusive privilege to produce, create or display the work.  It may be possible to copyright a book containing recipes and sometimes even certain recipes themselves or the method or technique of preparation of food products.

Local Regulations

In addition to organizing a business entity and protecting intellectual property, food service operators need to obtain all appropriate permits and licenses.  The permitting and licensing process varies widely from state to state and even city to city and county to county.  Often local government offices can be a great resource for determining what type of licensing and permitting you will need for your business.  In addition, you will likely need additional licensing if you serve or distribute alcohol.  Your business may also be subject to food and safety health inspections.

Conclusion

With the foregoing in mind and, facing the legal side of the foodservice industry does not have to be a daunting task.

If you have any questions in this area, please contact:

Jonathan M. Weis at:

jweis@lgattorneys.com or 312-368-0100.

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