Archive for the KNOW YOUR RIGHTS: A RESTAURANT WORKER’S SURVIVAL GUIDE Category

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Sexual Harassment

Posted in Sexual Harassment with tags , , , on October 13, 2008 by pdxrwa

Restaurant work is notorious for sexual harassment though many workers and bosses are unaware of what behaviors violate sexual harassment laws. The majority of restaurants do not have a clear sexual harassment policy posted and more often than not managers do not have disciplinary procedures in place to protect workers from abuse.

The lack of clear sexual harassment polices create an atmosphere of tolerance for behavior that would never be accepted in any other workplace or social situation.

The Equal Employment Opportunity Commission (EEOC) has listed restaurants as the top source of sexual harassment claims. They only investigate abuses that are actually reported which means many violations go unreported. Below are some examples of behaviors/actions that constitute sexual harassment:

Verbal or Written:

Comments about clothing, personal behavior, or a person’s body; sexual or sex-based jokes; requesting sexual favors or repeatedly asking a person out; sexual innuendos; telling rumors about a person’s personal or sexual life; threatening a person

Physical:

Assault; impeding or blocking movement; inappropriate touching of a person or a person’s clothing; kissing, hugging, patting, stroking, pinching, rape

Nonverbal:

Leering, Looking up and down a person’s body; derogatory gestures or facial expressions of a sexual nature; following a person

Visual:

Posters, drawings, pictures, screen savers or emails of a sexual nature

Federal Law:

The Federal law prohibiting sexual harassment in the workplace is Title VII of the 1964 Civil Rights Act, as amended. The law makes certain employers responsible for preventing and stopping sexual harassment that occurs on the job.

Retaliation is Also Against the Law:

Not only is sex harassment against the law, but so is retaliating (taking revenge) against someone for complaining about sexual harassment or for participating in an investigation of sexual harassment. Examples of retaliation include: you complain about sexual harassment and are made to take an unpaid leave of absence, although the harasser continues to work; after you write a letter describing sexual harassment that you witnessed, you are reassigned to a less desirable position in the same or different department.

Employer Responsibilities to Workers:

Title VII makes employers liable to prevent and stop sexual harassment of workers. Under Title VII, covered employers must:

  1. take reasonable care to prevent sexual harassment
  2. take reasonable care to promptly correct sexual harassment that has occurred

There are no specific actions an employer must take to satisfy the requirement that it take reasonable care to prevent or stop sexual harassment. An employer may satisfy the requirement of reasonable care to prevent sexual harassment by having and distributing to workers a policy prohibiting sexual harassment and informing workers how to make a complaint. However, if an employer has a policy but does not enforce it, or if an employer fails to investigate sexual harassment complaints but investigates other complaints of misconduct, then the employer may not be taking reasonable care.

However, before an employer can be legally responsible for taking reasonable care to correct sexual harassment, the employer must be aware that the harassment has occurred.

For this reason, it is important to notify your employer that sexual harassment has occurred.

It is sometimes hard to report harassment because you might feel embarrassed or think that it was your fault even though it is not. Reporting sexual harassment to your employer is important. It may stop the behavior and it makes your employer responsible for stopping the behavior.

Questions and Answers about sexual harassment: WorkplaceFairness.org

The information contained in this section was collected from the Equal Rights Advocate’s and the U.S. Equal Employment Opportunity Commission’s websites: http://www.equalrights.org/publications/kyr/shwork.asp
http://www.eeoc.gov/

Tip Pooling & “Tip Out”

Posted in Tip Pooling & "Tip Out" with tags , , , , , , , , , on October 12, 2008 by pdxrwa

Oregon law fails to address tips and tip pools and, therefore, BOLI does not enforce any standards regarding tips.  While the U.S. Department of Labor (DOL) establishes regulations regarding tips based on the federal Fair Labor Standards Act (FLSA), the DOL and the courts interpret the law differently.  Recent cases within the United States District Court for the District of Oregon have held that the FLSA does not regulate tips if the employer does not claim a tip credit (and Oregon prohibits employers taking a tip credit).  Employers are also free to make the tip pooling arrangements they dictate a condition of employment. As a result, even though the Department of Labor regulations grant restaurant workers control over their tips, those workers cannot currently assert those rights in Oregon courts.

The PRWA wants to hear from you about tips and tip pools. What has been your experience?  How much control did you have over your tips and tip outs?  Please write us with your story at contact@pdxrwa.org

Below are the standards set by the U.S. Department of Labor on the topic of tips.  Be aware, these interpretations are specific to DOL and the FLSA and are not meant to be confused for Oregon employment law.

Tips:

All tips that an employee receives are his or her property.  The law forbids any arrangement between the employer and the tipped employee whereby any part of the tip received becomes the property of the employer.

Tip Pools:

The requirement that an employee must retain all tips does not preclude a valid tip pooling or sharing arrangement among employees who customarily and regularly receive tips, such as waiters, waitresses, bellhops, counter personnel (who serve customers), busboys/girls and service bartenders.

Tip Pool Criteria:

  • consists of traditionally tipped employees: waiters, waitresses, servers, bartenders, counter personnel (who serve customers), busboys/girls, and hosts
  • cannot include owners or managers in the tip pool
  • cannot take more than a “customary and reasonable” amount of each employee’s tips (15% of tips or 2% of sales is customary and reasonable according to the Department of Labor)

When non-traditionally tipped employees are included in a tip pool, that is when the system has to be entirely voluntary—each employee can decide how much (if any) of her tips to share with anyone else.

Tip-Out Criteria:

  • must be entirely voluntary
  • each tipped employee must be able to decide on their own whether to tip out any non-tipped employee, and if so, how much

Workers Compensation

Posted in Workers Compensation with tags , , , on October 11, 2008 by pdxrwa

Due to the mostly informal training processes, hot kitchens, and long hours workers, especially kitchen workers, can get injured pretty easily. Most of the time the injuries sustained are minor. Common injuries are burns, cuts and strains but if a worker needs medical treatment (say your finger was caught in a coffee grinder or you chop the end of your finger off) they can file a workers compensation report to cover medical costs.

Workers’ compensation laws provide money and medical benefits to a worker who has an injury as a result of an accident, injury or occupational disease on-the-job. It is a “no-fault” system intended to benefit the worker and employer alike though many employers dispute claims. The worker receives money (usually on a weekly or biweekly basis) and medical benefits in exchange for forfeiting the common law right to sue the employer. Independent contractors are not considered “workers” and are not eligible for workers compensation for injuries incurred on the job-site.

How to File a Claim:

• Notify your employer about your job-related injury or illness as soon as possible.
• Ask your employer to give you Form 801, “Report of Job Injury or Illness,” and complete Form 801.
• Ask your employer the name of its workers’ compensation insurer.
• Get medical treatment from a health care provider of your choice and tell your provider that you were injured on the job. Your employer cannot choose your health care provider for you.
• Your health care provider should ask you to complete Form 827, “Worker’s and Physician’s Report for Workers’ Compensation Claims.”

Filing a Claim with a Doctor/Hospital:

If you go to a doctor after being injured, tell your doctor you were hurt on the job. You and your doctor should complete Oregon Form 827, Worker’s and Physician’s Report for Worker’s Compensation Claims. Doctors and hospitals are required to report job-related injuries to your employer’s workers’ compensation insurer (the company from which your employer has purchased workers’ compensation insurance) within 3 working days.

Your Employer’s Responsibilities:

Your employer must send your workers’ compensation claim (Form 801) to their insurer within 5 days of being notified of your injury. It is illegal for employers to do anything to keep workers from filing injury claims including intimidation or threats of job loss.

Employers must not:

• … make workers sign statements agreeing not to file a claim.
• …require you to say the injury occurred somewhere other than at work.
• …pressure you to not file an injury claim form by agreeing to pay the medical bills.
• …require workers to sign up as independent contractors, partners, or corporate officers for the purpose of avoiding workers’ compensation requirements.

The Insurer’s Responsibilities:

The insurer must accept or deny your claim within 60 days from the day you file the 801 form claim with your employer.

If your claim is denied, the insurer will tell you about your appeal rights in the denial letter they send to you.

If your claim is accepted, the insurer will send you a “Notice of Acceptance.” This notice will list the medical conditions accepted for coverage by the insurer. If you believe that a condition has been left off the notice, or the notice is otherwise incomplete or incorrect, you must notify the insurer of the error in writing.

The insurer will pay time-loss authorized by your doctor. You won’t have to repay time-loss benefits if your claim is denied. However, if your claim is denied within two weeks of the date you reported the claim to your employer, you will not receive time-loss payments.

Denial of Claim:

Claims are often denied in which case it is prudent for large claims that you hire a lawyer especially if these common situations occur:

• The employer denies you were injured on the job
• The carrier has denied benefits
• You cannot get medical treatment
• You are not getting paid
• The adjuster promises benefits or care which never arrives
• An attorney for the employer or insurance company contacts you and wants to take a deposition
• You want to sue a third person- You begin to represent yourself and you encounter someone on the other side who is particularly difficult and is trying to take advantage of your lack of legal experience

The information contained in this section was collected from WorkersCompensation.com

Unemployment Benefits

Posted in Unemployment Benefits with tags , , , , , , on October 11, 2008 by pdxrwa

Unemployment insurance replaces part of the income you lose when you become unemployed. It is a benefit available to workers out of work through no fault of their own.  Unemployment insurance softens the impact job losses have on communities by maintaining the purchasing power in the area where workers live.

The money for benefits comes from employers. No contributions for unemployment insurance come from employee wages (though 1.4¢ per hour are required to be withheld for the Workers Benefit Fund).

Disqualifications

You are disqualified if:

  • You voluntarily left work without good cause;
  • Your employer discharged or suspended you for misconduct connected with your work;
  • You failed without good cause to accept suitable work when offered; or
  • You failed without good cause to apply for suitable work when referred to a job by the Employment Department.

Benefit Eligibility

Your benefit amount depends upon the work that you performed. The minimum benefit is $108 a week. The maximum weekly benefit you can receive is $463 a week. You can estimate the how much you will get here: http://findit.emp.state.or.us/ocs/estimator/.

The total benefits you can receive are set by law. If the wages during the qualifying period are at least $8,424, you will be eligible for 26 weeks of benefits. If your qualifying wages are less, then the most you could receive is one third of those wages, paid at $108 a week.

Your unemployment insurance claim will be based on your recent work record for the 12-month period known as the base year. The base year is 4 calendar quarters (January through March, April through June, July through September, and October through December). For Oregon claims, the base year is the first 4 of the last 5 calendar quarters completed at the time you first file your claim. For example, if you file a new claim during May, your base year is all 4 quarters of the prior calendar year. To qualify, your work and wages during this base period must meet one of the following two tests: (1) total base period wages of at least 1½ times the wages in the highest quarter in the base period, plus at least $1,000 in wages earned in subject employment, or (2) 500 hours of subject employment.

Receiving benefits requires action on your part. Here is what you must do to receive benefits:

Use the Online Claim System or call the nearest Unemployment Insurance Center to file your initial claim. Use the Online Claim System or call the Weekly Claim Line to claim each week you wish to receive benefits.

  • Look for work every week. Keep track of where you look for work or the dates you check with your employer or union about work.
  • Keep track of any days that you are sick or away from the area where you live and work.
  • Keep track of any hours you work and the money you earn during each week.
  • If you are offered work, be able to answer questions about the job offer: name of the company and person you spoke to, the work offered and details about the job, such as the duties, pay, hours, etc.

You will receive benefits, provided you meet the eligibility requirements for each week you claim, after serving a waiting week.

Source: Oregon Employment Insurance Department http://www.oregon.gov/EMPLOY/UI/index.shtml

Workplace Searches

Posted in Workplace Searches with tags , , , on October 10, 2008 by pdxrwa

Federal and Oregon law do not prevent private sector employers from performing workplace searches.  However, an employer must protect an employee’s reasonable expectation of privacy when performing workplace searches.

Sources:

http://www.workplacefairness.org/searches

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