Editor’s note: This is the fourth article in a series where we’ll ask Courtney Leyes and Emily Litzinger, employment lawyers at Fisher Phillips, employment law questions specific to the restaurant industry. The first, on hiring minors, can be found here. The second, on how to accommodate pregnant and breastfeeding employees, can be found here. The third, on tip pooling, can be found here.
Today's question: We have noticed an uptick in union organizing within the restaurant industry. In the absence of a union, can quick-service operators do anything to give employees a similar sense of empowerment when it comes to labor relations?
Historically, the restaurant industry has had a very small percent of its workers unionized. But, in the past year and a half, there has been a dramatic increase in new union organizing activity across industries including quick-service businesses. Many restaurant workers see union membership as a way to obtain better working conditions and wages. But restaurants can achieve similar results without the presence of a third party by maintaining a culture of positive employee relations. To create positive employee relations, businesses should focus on enhancing employee loyalty and engagement; developing an employee relations infrastructure; and being prepared to identify and resolve all sources of lingering workplace anxiety.
Enhance Employee Loyalty: Encourage Participation and Engagement
The pandemic and the labor shortage have been challenging to all industries—but especially the service industry. To mend these wounds, it is key to reestablish management credibility as this is the solid foundation upon which employee loyalty and engagement are built. To this end, owners and operators should challenge supervisors to apply positive employee relations principles every day.
Management should be as transparent and responsive as possible and should establish regular meetings with employees—whether they are conducted one-on-one or in a group setting to solicit employee input, provide follow-up, and furnish operational updates. Engagement means including employees in decisions that affect them and making every effort to consider their input. Employers could do so by utilizing lawful employee committees (e.g., safety, social, recognition, community involvement, etc.) when practical and implementing various other methods to recognize employees’ needs and develop programs to meet those articulated needs.
It may be impossible to make everyone happy, but you can take steps to ensure that employees do not feel ignored with employee satisfaction surveys and other methods of soliciting feedback. And, if there are rumblings of concerns, there should be step-by-step procedures to promptly identify and consistently address employee grievances across the board. Positive employee relations is built on a sense of fairness, and, to avoid the appearance of favoritism, employers should treat all employees with dignity and respect; consistently enforce policies, rules and expectations; investigate thoroughly before acting; and provide advance notice of changes.
Develop Your Employee Relations “Infrastructure:” Uphold Industry Standards and Create a Desirable Workplace
The hospitality industry should expect the National Labor Relations. Board (NLRB) and other agencies to renew their enhanced scrutiny over rules regulating workplace conduct. As a result, quick-serves may soon need to update policies regulating harassment, solicitation, distribution, property access, social media, workplace recordings and investigation, electronic communications, uniforms, class waivers and related issues.
It is also important to continually strive to maintain a package that is competitive relative to area and industry standards. This means complying with all relevant wage payment laws, clearly explaining pay plans in clear terms, and promptly responding to all wage issues.
Enhancing pay will also help attract more workers. To this end, it is important to also ensure that you attract and retain a diverse workforce which can bring different voices and perspectives to your workplace.
Additionally, you should focus on safety and preempt any attempt to exploit workplace safety concerns by underscoring your commitment to a safe and hygienic workplace. Reinforce those efforts by soliciting input to increase visibility of internal resources accountable for spearheading safety efforts.
Finally, build your image within the surrounding community. Foster pride and identity within your organization, thereby reducing the tendency to identify with others outside of it. Look for early opportunities to engage in team-building, while fostering relationships with local political, philanthropic, and civil rights leaders.
Identify and Resolve Sources of Workplace Anxiety: Recognize Early Warning Signs and Emphasize Communication
You cannot manage what you cannot measure. To make change, employers must be able to identify and resolve all sources of lingering workplace anxiety. To this end, many employers conduct a comprehensive “employee relations audit” and implement various policies and programs to address any resulting concerns.
Take this information learned and train supervisors to effectively articulate your employee relations philosophy. Supervisors are your first line of defense (or your first line of exposure). Whether your management team is trained in person or otherwise, they should be conversant on: (a) The reasons why the employer prefers to work directly with employees; (b) Their status as legal agents; and, (c) Employer “free speech” rights and how to lawfully exercise them.
Stay updated and informed about trends that may affect your workplace culture by cultivating relationships with area and industry human resources professionals, security consultants, neighbors, local law enforcement officials, etc. Think outside the box when it comes to closing communication gaps. Employers that embrace the challenges by leveraging interactive video, intranet, web-based platforms, etc., are far more likely to weather communication challenges.
Change has arrived in the world of labor relations. Those employers who get ahead of the curve by planning for and improving their existing labor relations models will be better positioned to withstand any potential organizing activity. No single “off-the-shelf” action plan can prepare you for these developments. Every organization must analyze its own workforce, industry, resources, and other unique factors before tailoring a sustainable plan. Consider working with labor relations counsel to tailor a strategic but lawful plan that fits the unique aspects of your corporate culture on a privileged basis.
Courtney Leyes and Emily Litzinger are employment lawyers at Fisher Phillips where they regularly partner with restaurant industry clients to minimize liability and reduce risk with preventative strategies focused on compliance, training, and the implementation of best practices. Having both worked in the industry, they understand the delicate balance restaurant employers face when managing a diverse and ever-changing workforce in today’s complex legal landscape.