Handbooks can help you effectively communicate your expectations and vision to your restaurant’s staff. Most employment attorneys recommend having one because it is an important tool should you need to defend yourself in litigation. If you do have a handbook, you must be mindful of what you include. Having a potentially unlawful handbook policy may make you vulnerable to liability under the National Labor Relations Act (NLRA) and subject to sanction by the National Labor Relations Board (NLRB), the agency responsible for enforcing the NLRA.
You may not know that Section 7 of the NLRA applies to all non-management employees and is not limited to only unionized employees. Specifically, section 7 protects an employee’s right to engage in concerted activity. This protects a host of activities, including an employee’s right to discuss working conditions with other employees and to act collectively when raising complaints with management. Therefore, the NLRB will likely consider an employer’s policy unlawful if it could “reasonably tend to chill employees in the exercise of their section 7 rights.” Lutheran Heritage Village-Livonia, 343 NLRB No. 646 (2004).
A restaurant’s employee handbook is often fertile ground for the NLRB for to find unlawful workplace policies that result in sanctions. Here are three policies to consider removing immediately:
1. Do not discuss your wages or your tips with other employees.
Federal law prohibits this kind of policy. The NLRA protects an employee’s right to discuss wages and other working conditions with other employees. Plus, several states have enacted similar state laws. For example, Colorado’s 2008 Wage Transparency Act prohibits employers from retaliating against employees who share wage information. Currently, Washington state is considering similar legislation (H.B. 1646) to combat gender pay inequality.
2. Do not post or comment about the Company or about Company matters on social media.
You may not expect it but this policy trips over the NLRA because it infringes upon an employee’s right to use social media to discuss wages and other working conditions. If you have a social media policy, consider avoiding language that could be interpreted as prohibiting discussions of work place conditions. The NLRB considered the following social media policy and found it acceptable because it did not explicitly prohibit employees from posting their own job-related information or discussing issues pertaining to their job with co-workers:
While your free time is generally not subject to any restriction by the Company, the Company urges all employees not to post information regarding the Company, their jobs, or other employees which could lead to morale issues in the workplace or detrimentally affect the Company’s business. This can be accomplished by always thinking before you post, being civil to others and their opinions, and not posting personal information about others unless you have received their permission.
See Landry's Inc. et al., v. Sophia Flores, case number 32-CA-118213.
3. Always Be Respectful of the Company and others.
The NLRB considers this provision and other variations to be unlawful, including: “do not make statements that damage the company or its reputation” or “never engage in behavior that would undermine the Company’s reputation.” The NLRB explains that a reasonable employee may read this policy as restricting employees from complaining to management or to other employees about their working conditions. Therefore, consider redrafting a policy like this so that it targets specific issues, such as direct insubordination (refusing a supervisor’s reasonable request) or requiring that a employee be respectful when dealing with guests and members of the public.
What’s on your plate? Curious about a specific legal trend you’re noticing in the food industry or have a question we could address in Legal Bites? We’d love to hear from you. Send your questions to firstname.lastname@example.org.
Legal Update column brought to you by Wendy McGuire Coats and Rochelle Nelson of Fisher Phillips.
WCR MEMBER OF THE MONTH... LAURIE WEBER
Let's get to know a little about Laurie Weber. Enjoy the read!
Pastry Chef Laurie Weber, and her husband, Reto, have owned and operated The Swiss Bakery in Northern Virginia since 2001. Their two locations offer Swiss, German and European Pastries, Baked Goods, and hard-to-find Swiss Gourmet Imports, to satisfy a large European customer-base (including organizations such as the Swiss Embassy, and The German Military.) Prior to this, Laurie worked as a Pastry Chef in New York City, Washington, DC and Minneapolis and is an active member of Les Dames d 'Escoffier and Women's Chefs and Restaurateurs. While working under Chef Roberto Donna of Galileo, Laurie earned the title of 2001 Pastry Chef of the Year from the Restaurant Association of Metropolitan Washington.
Who was your food Inspiration?
Oh that would be my Mom and Dad! What amazing people. They came from a farming community of Illinois, before eventually opening a restaurant. They taught themselves everything about the business including, butchery, baking, seafood, cooking. We were taught work ethic, to push harder to achieve your goals, and to be strong. Watching and working with my parents in their restaurant as I grew up, definitely influenced my joy in a kitchen. And I think I knew I was going to have a career in the food industry when I received my first chef's knife for my 16th birthday.
What is your dream job?
I have my dream job! My business is thriving, growing and successful. We have two retail stores that include multiple components: mail order, wholesale, imports, bakery, pastry shop, cafe and market. I work in a community that is supportive and vibrant. I have great employees that are my friends, my family and my students. And my business partner is my husband, 15 years together, everyday. We love and respect each other. My career is full of new challenges, learning opportunities, watching my staff grow, and just having fun! I love being in the DC area with new and old Chef friendships and the farmers, purveyors, sales people who share my passion for food. I have a lot to be grateful for, but I know all that I have achieved was due to my own hard work and determination.
What advice would you give to a 20 something in the industry?
I have three main pieces of advice for any 20-something year olds, including my daughter:
1. Never burn bridges
2. Focus on working smarter, not just harder.
3. Respect everyone, including the dishwashers.
Great ADVICE Laurie. Thank you so much for your time...
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