2024 is quickly approaching, and you will most likely be making a New Year’s resolution or two. And, if you are like the majority of those who make these resolutions and start the year with nothing but good intentions, you will probably break your resolutions just days into 2024. However, unlike the idyllic resolutions you may make in your personal life (we know our yearly “eat healthier” resolution falls to the wayside as soon as we are confronted with a Biscuit Belly “gravy train” … we are weak!), below are some good resolutions for you to make and keep for your quick-service restaurant as you look ahead to the New Year:
1. “Tame the Bulge.” If you have not already done so, in 2024, you should take a look at revising and updating your employee handbook to make sure it does not offend the National Labor Relations Board (“NLRB” or “the Board”). By way of background, the NLRB recently changed the law again on employee handbooks by modifying the legal standards that for the past six years have provided a commonsense solution for evaluating workplace misconduct rules.
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Under the new standard, the Board analyzes whether an employee “would reasonably construe” a rule or policy as chilling protected conduct under Section 7 of the National Labor Relations Act. To avoid a violation, employers must show that workplace conduct rules are narrowly tailored to special circumstances justifying any infringement on employee rights. Thus, some potential handbook policies that could now come under NLRB scrutiny include, but are not limited to:
- Workplace civility rules;
- Loitering rules;
- Restrictions on video and/or cell phone recording; and
- Restrictions on employees’ use of social media.
Our labor relations colleagues took a deeper dive on this subject in this article on our firm’s website, and we would encourage you to take a look to make sure your handbook is in compliance with the new standard for 2024.
2. “Fit in Fitness.” Once you have revised your handbook, it would be a good idea to present your revisions and conduct training on any updated policies. An employee handbook is only as good as your implementation of the policies and training your employees on those same policies. Training your employees on your policies and procedures will ensure that your employees understand these policies and how they are implemented and interpreted.
3. “Learn How to Be Accommodating.” Being in the hospitality industry, it is natural for you to be accommodating to guests. However, your obligation to accommodate does not stop there. In late 2022, The Pregnant Workers Fairness Act (PWFA) was signed into law requiring covered employers to provide reasonable accommodations for employees with medical conditions related to pregnant and childbirth. At the same time, the Providing Urgent Maternal Protections for Nursing Mothers (PUMP) Act was also passed requiring employers to provide time and space for breastfeeding parents. The PWFA requires employers to consider employee and applicant accommodation requests related to pregnancy, childbirth, or related medical conditions the same way it has considered requests for accommodation related to disabilities under the Americans with Disabilities Act (ADA).
The Providing Urgent Maternal Protections for Nursing Mothers (PUMP) Act requires organizations to provide time and space for breastfeeding parents that expands beyond prior protections to include all workers. You should look to expanding your accommodations review process to include requests related to pregnancy, childbirth, and related medical conditions. You can start by reading our previous column on this topic, and from there we would encourage you to partner with your employment lawyer to assist in any sort of accommodations review process.
Pregnant workers are not the only employees that need to be accommodated. The U.S. Supreme Court recently changed the standard by which employers are to handle requests for religious accommodations in Groff v. DeJoy. Employers are subjected to a higher burden with regard to accommodating an employee who requests a religious accommodation. Despite this significant change, the Court has provided little direction for employers. We recommend reviewing your current processes and reaching out to your trusted employment counsel for further advice.
4. “Get Organized.” Big changes are on the horizon in wage and hour law next year. The U.S. Department of Labor’s Wage and Hour Division (“WHD”) intends to roll out its new regulations pertaining to the white-collar exemptions. Particularly, the WHD has proposed to raise the salary basis threshold to meet the white-collar exemptions from $35,568 annually to $55,068, which may impact a number of your managers. The proposal is not law yet, and it will face a few hurdles before it takes effect. The notice and comment period ended November 7, 2023. While we expect litigation relating to this change, we can’t count on this happening, and it is important for employers to prepare as if the proposal will take effect in the near future.
To better prepare, you should take a look at our colleagues’ client alert on this topic and then partner with trusted legal counsel (so that your communications and review will be protected by the attorney-client privilege) to examine how your employees are compensated. You should consider how you want to handle those employees who may be affected by the salary basis changes. In doing so, you can look at how many hours they are working on average per week and determine an hourly rate that works for you. Your trusted employment attorney also could explore any other potential exemptions that could apply to these employees.
5. “Be Less Stressed.” We promise this is not a joke, as we know you are laughing at us when we list this as a resolution. However, we hope that the above information has made you better informed so you can try your best to address the above issues (and contact your employment attorney when necessary!), which will hopefully help your restaurant avoid unnecessary employment law snafus in 2024. And knowing that you are better prepared should reduce your stress … and we all could use a little less stress.
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.