Labor and employment issues in the hospitality industry in San Francisco - Research Paper Example

Labor and employment issues in the hospitality industry in San Francisco. Introduction The hospitality industry, just like any other employer, is faced with multiple labor and employment issues. It is important for employers in this industry to understand the scope of these issues in order to avoid penalties, fines, and litigation. Employees, on the other hand, also need to understand their rights in order to ensure that they have proper employment terms and appropriate working conditions. Some of these issues include wage hour polices, compliance with immigration laws, occupational safety, harassment and discrimination issues, employee heath care cover, time off regulations, and trade unionization. By addressing these issues proactively, hospitality industry employers will significantly reduce the costs of labor and employment issues and also reduce employee turnover. Additionally, knowledge of these issues will also assist both the employers and employees in complying with federal and state employment requirements. In this regard, this paper will discuss some of these labor and employment issues faced by the hospitality industry in San Francisco. Employee heath care cover The Patient Protection and Affordable Care Act requires hospitality employers to provide heath care cover for its full time employees. The Act provides that employers with more than 50 full time employees or full time equivalents must provide heath care cover for its employees. Such an employer will be subject to tax if one or more of its enrolls for cover through a state exchange and qualifies for a premium tax credit or a subsidy because the employer does not provide minimum cover or provides cover that does not meet minimum value or is inappropriate. The tax for the employer, in this case, ranges from $2000 to $3000 for every employee who is not covered. Hospitality employers with more than 50 employees must, therefore, provide minimum essential cover in order to avoid these taxes. The tax liability is significant and can adversely affect the operations. In order to ensure that employees have the appropriate cover it is essential for the employer to determine if its employees are full time employees. The Act provides that a full time employee must work for at least 30 hours a week and should have worked at least 130 hours in the preceding month. This implies that both hourly and non hourly employees qualify as full time employees if they meet the criterion. Additionally, the IRS provides the use of the look back or stability period to determine if employees are full time. Under this method, an employer will need to look back at a period of three to 12 months and if the employee worked an average of 30 hours per week then the employee qualifies as a full time employee. Determination of an employee‘s status is paramount to the provision of the appropriate health care cover (Frumer, and Melvin 78). Minimum wage and overtime The minimum wage under the California law is $9 per hour while the federal minimum is $7.5. However, some municipalities in California, such as San Francisco, have higher minimum wage requirements of $10.55 per hour. Employers in the hospitality industry in San Francisco must comply with this minimum requirement in order to avoid paying their employees liquidated damages as well as other penalties that may arise due to violation. Apart from the minimum wage requirement employees are also entitled to meal and rest breaks. The California Labor laws forbid employers from requiring employees to work through break and rest periods. Under this code an employee is entitled to a 30 minute break in a five hour workday and two 30 minute breaks during a 10 hour work day. Additionally, California labor laws require that employees be given a 10 minute paid rest break for every four working hours. The rest period should be within the work period and where the employee does not receive this rest break, the employer should pay the employee an equivalent of one hours pay for every work day that the break is not provided (Chang, et al. 1032). In respect to overtime hours, California laws require that non exempt employees receive one and half times their regular hourly pay rates hours worked in excess of eight hours a day or 40 hours a week. In addition, non exempt employees should be paid twice their regular hourly pay rates for hours worked in excess of 12 hours a day or over eight hours on the seventh day of the week. Under the United States Fair Labor Standards Act, employers who violate overtime laws can face lawsuits. Workplace safety The Occupational Safety and Health Act (OSHA) set guidelines to ensure that the workplace is free from recognized hazards. Hospitality employers must ensure that they provide safe working environment for employees. OSHA requires employers to properly and accurately record work place injuries. OSHA also requires that non English speaking employees be trained in a language that they understand. Additionally, OSHA issues citations and penalties for hazards and whistle blower related complains. With these requirements and the aggressive work place inspections by OSHA, employers who violate safety requirements are likely to pay significant penalties for violations. In order for hospitality employers in San Francisco to avoid these penalties, it is vital that they ensure that their safety policies are updated and that training, especially in respect to non English speaking employees, are updated to reflect the requirements by OSHA. Furthermore, employers with unionized employees should be aware of the tendency of unions to make complaints to OSHA. Fines for violation of workplace safety can affect the operation of an employer and, therefore, it is important to observe these regulations. Immigration compliance It is essential for employers, especially hospitality employers in San Francisco, to ensure that they comply with immigration related regulations. The reason it is important to comply is that the Immigration Customs Enforcement (ICE) has in the past increased its enforcement activities. A significant proportion of immigration related inspections result in substantial fines because of lack of compliance policies by employers. The I-9 fines are as high as $1,100 for every employee and apply for even minor paper work mistakes. Most employers do not have immigration compliance policies or have basic policies and are inadequately prepared for ICE inspections. Furthermore, employers in the hospitality industry in San Francisco face the highest risk in such inspections due to the historical make up of their employees. Fines related to immigration issues can be crippling to a hospitality employer and it is necessary to eliminate or reduce the incidence of these fines. In doing so, it is important for the employer to avoid employing unauthorized employees. There are a number of methods hospitality employers in San Francisco can adopt to ensure that unauthorized employees do not join their workforce. These methods include the provision of I-9 training to human resource, implementing an immigration compliance program, submitting to a voluntary I-9 audit, establishing an ICE inspection protocol and using the E-verify system. It is also important for the employer to undertake internal I-9 reviews (Minkler, et al. 1032) Despite the ICE requirement on unauthorized employees, it should be noted that employers are prohibited from engaging in unfair immigration related practices. Employers are prohibited from reporting or threatening to report immigrant employees who assert their labor rights. The employer is also prohibited from requesting additional immigration documents, contacting authorities or using the E-verity system when employees assert their labor rights. The labor laws allow the state to suspend or revoke the license of any employer who engages in unfair immigration related practices. Employee time off regulations The Family Medical Leave Act (FMLA) is a federal Act that requires employers to provide employees with up to 12 weeks of unpaid leave for the birth and care of a new born child, care of a sick spouse, parent or child or care of an adopted child. Employees who are eligible for leave under the FMLA must have worked for the employer for at least a year, worked for at least 1250 hours in the past year and the employer employs a minimum of 50 employees. The California Family Rights Act (CFRA) is the state equivalent of the FMLA. Under the CFRA, employees are entitled to a 12 week leave in a year and upon their return they should be reinstated or offered a comparable position. Additionally, state laws require employers to provide heath care benefits for employees on disability and or pregnancy leave (Moss, et al.370). Apart from the FMLA and the CFRA, employers in San Francisco should also observe with the San Francisco Sick Leave Ordinance. The ordinance provides that all employers in San Francisco must provide paid sick leave for its employees. Under the ordinance, employees are entitled to paid sick leave in respect to the amount of time worked. The law provides a broad definition of when the paid sick leave can be taken and this includes leave to care for a sick child, spouse or parent. The ordinance requires employers to provide sick leave accruals of one hour for every 30 working hours. Unlike the FMLA and the CFRA, the ordinance covers all employees irrespective of the number of employees in the workforce. Hospitality employers in San Francisco need to observe the requirements of the ordinance in order to avoid penalties. Workplace harassment and discrimination Federal and state laws prohibit workplace discrimination based on an employees protected characteristics. California state laws define protected characteristics to include color, nationality, religion, race, disability, medical condition, age, sex and sexual orientation. Discrimination can take any form including disparate treatment, which involves the actions of an employer such as terminating or promoting an employee due to a protected characteristic. Disparate impact is another form of discrimination and it involves employer’s policies which have an adverse effect on employees with protected characteristics. There is also harassment which includes harassing conduct such as intimidation, advances, slurs and touching. Harassment can be severe and pervasive such that it creates a hostile work environment. Employers in the hospitality industry in San Francisco should ensure that there is no harassment or discrimination of their employees. Successful discrimination and harassment lawsuits may cost the employer in form of compensation for emotional distress, litigation fees and punitive damages imposed by the courts (Sperino 69). In order to avoid such costs, employers should adopt proactive policies to reduce the occurrence of discrimination or harassment. The policies that should be adopted include implementation and enforcement of equal employment policies that diversify candidates considered for promotion. Additionally, it is important for employers to implement harassment and discrimination policies that prohibit all types of harassment or discrimination. Employee unionization Most hospitality employers rarely consider the possibility of their employees joining unions. The number of unionized employees in the hospitality industry is very low. However, the number of unionized employees in the hospitality industry has significantly increased in the past few years. Moreover, there have been recent campaigns against some hospitality employers in some states such as Minneapolis, New York, and Maryland. These campaigns have been supported by the Industrial Workers of the World (IWW). The IWW has organized campaigns with Starbucks employees and even formed the Starbucks Workers Union. More recently the IWW has organized campaigns against Jimmy Johns in Minneapolis. The IWW advocates for solidarity unionism, which is a model which enables workers to formulate strategies and take action against the employer without meditation from both paid union representatives or the government. With the recent trends by the union, hospitality employers in San Francisco should be aware that their employees are subject to unionization. Employers should, therefore, take measures to avoid unfair labor practices and practice positive employment relationships to avoid problems with workers unions. Conclusion From the discussion of labor and employment issues faced by hospitality industry employers in San Francisco, it is imperative that there are a number of issues that employers must understand in order to ensure smooth operations. Understanding the breadth of these issues assists the employer and employees to operate within the requirements of federal and state laws. This knowledge also assists employers in reducing and eliminating liabilities related to employment issues. Works cited Chang, Charlotte, et al. "Studying and Addressing Urban Immigrant Restaurant Worker Health and Safety in San Francisco’s Chinatown District: A CBPR Case Study." Journal of Urban Health 90.6 (2013): 1026-1040. Frumer, Louis R., and Melvin I. Friedman. Managed Health Care Organizations. Vol. 19. Personal Injury--Actions, Defenses, Damages, 2013. Minkler, Meredith, et al. "Using community‐based participatory research to design and initiate a study on immigrant worker health and safety in San Franciscos Chinatown restaurants." American journal of industrial medicine 53.4 (2010): 361-371. Moss, Scott A., et al. "Reviving Employee Rights? Recent and Upcoming Employment Discrimination Legislation: Proceedings of the 2010 Annual Meeting of the Association of American Law Schools Section on Employment Discrimination Law." Empl. Rts. & Employ. Poly J. 14 (2010): 355-355. Sperino, Sandra F. "Rethinking Discrimination Law." Mich. L. Rev. 110 (2011): 69. Read More