Without a doubt, HR is a sticky, tangled web of rules and regulations. And because of this, restauranteurs and operators can quickly be pulled into a whirlwind of legal troubles related to any number of potential violations.
Below are 10 common HR violations employers frequently encounter as well as resources (linked throughout) to provide additional guidance and avoid legal pitfalls.
1. Failure to complete proper new hire paperwork.
New hires come with a slew of new paperwork. From W-4s to I-9s, there are several forms that must be completed for each new employee in order to meet both federal and state requirements. Adding to the complexity of it all — each state may have different guidelines too, so awareness is key.
2. Paying "tip wages" for non-tip paying jobs.
Tip pooling is a common practice in many restaurants. It's perfectly legal when the funds are distributed among employees who regularly and customarily receive tips. But violations occur when the pooled tips are distributed to employees — such as chefs, janitors, and dishwashers — who do not regularly receive tips. When that occurs, the tipped employee is "owed the full $7.25 minimum wage and reimbursement of the amount of tips" improperly distributed, according to the U.S. Department of Labor (DOL).
3. Not paying overtime.
Due to the nature of restaurants and their mix of full-, part-time, and temporary employees of all ages, wage and hour issues are frequent occurrences. Misclassifying an employee as exempt from overtime — whether intentional or not — is illegal. Similarly, paying a non-exempt employee a salary or "base weekly pay" but not overtime can get you into trouble too. The same goes for docking employee pay due to poor work quality or having an employee work in two locations but not paying overtime.
4. Asking illegal questions in the interview process.
An in-depth interview process is definitely something to strive for, but not if you end up venturing into illegal territory. Under no circumstances can employers ask candidates questions regarding marital status, family size, childcare, religious beliefs, or drug use. There are several other topics to avoid as well, so tread carefully.
5. Hiring unpaid "interns."
There has always been confusion around whether interns must be paid. Thankfully, the Wage and Hour Division of the DOL has broken down the requirements quite succinctly for employers. An unpaid internship must meet all of the following criteria:
- The internship is similar to training which would be given in an educational environment.
- It’s for the benefit of the intern.
- The intern doesn’t displace paid employees.
- The employer doesn’t benefit from work the intern is doing and "on occasion its operations may actually be impeded."
- The intern isn’t promised a job at the end (i.e. unpaid "tryouts" aren’t allowed).
- Both the intern and employer understand it is unpaid.