Skinny on Outdoor Dining Skinny, Employment Re-Opening Guide and More…

U.S. BLUES: REOPENING STALLS AS AMERICA BUGS OUT!!!

Dear HL Clients,

Has everyone just gone bonkers? We have over 25,000 dead New Yorkers and every day, in full view, we documented the pain and anguish and fear that gripped our city and we were first and worst and laid it all out there for everyone to see and to learn from. We dealt with it right and fixed it and for what? The rest of the country and DFT flat out ignore our work and the facts and science and now everyone’s bugging and we, here in NYC, pay the price for the ignorance of the masses!

Of course we can’t open on the 6th.  Who in their right mind thought that was a smart move?  De Mayor got all stirred up about the jigger of positive press that he received for not fumbling the outdoor dining and he got greedy.  So, he prematurely annunciated the early opening date and then had to clean up his mess. Oh brother.

And now, because in weirdo world wearing a damn mask is a political statement, we have to wait to open our restaurants and bars until it’s under control everywhere in the country.  Happy Birthday America, sorry that we made you so sick but don’t fear, hope and blind faith will heal you.  Plans and strategies and actions are for losers after all.

So, the rocky road to recovery continues and what are we hearing from our dearly elected?  Is there money coming?  Is anyone going to address the rent crisis? What do we have to do to get their attention? Is it time to hit the streets?  Go on strike? 

And where do I even begin with Landy? I had a sanctimonious snot-nose Landy tell me that there was “nothing he could do” about lowering a ridiculous rent he was demanding for a 12 seat restaurant.  I challenged his inanity by simply asking him that if he, the lord of the land, could not do anything about the rent, then who could?  I guess he had never had to answer that question before as the ensuing hemming and hawing and the loss of temper and threats that emerged from that one simple question was surely an earful and it gave me an up-close look into the cavernous mind of Landy.  Rotted out and filled with the emptiness of the pursuit of money, stark materialism and deep, deep insecurity.  Anyway, we ended up getting a workable deal and the owner thinks he has a shot to make it. So, another neighborhood restaurant saved for the moment. 

While we celebrate the tiniest of victories, lots of clients are deciding to pack it in and sit it out.  Landys who are not playing ball better get a bigger fob to hold those returned keys.  The onslaught has already begun and just wait until August. Landy’s gonna have to learn the hard way that empty spaces are not gonna be so easy to fill.


Here’s Joseph with the skinny on outdoor dining:

Joey Regs Says:

It looks like we have a chance to increase our outdoor dining footprint and control the streets now! The DOT and City recently released new information about the “Open Streets” dining options and we are going to breakdown the fairly complex list of guidelines and requirements here. 
 
Per the DOT, the first batch of temporary street closures for outdoor dining will open the weekend of July 4. Expanded seating will be from 5pm to 11pm on Friday nights, and noon to 11pm on Saturdays and Sundays. The second batch of temporary street closures for outdoor dining will begin Friday, July 17. Expanded seating will last until Labor Day.
 
Who can apply:

  • Community based organizations including Business Improvement Districts, Merchants Associations, etc.

OR

  • A group of, at a minimum, three (3) food service establishments (a “Restaurant Group”) on a full block. 

What this means:

  • Hit the streets and talk to your restaurant and bar neighbors about applying for this seating. Once you have your “restaurant group,” you will need to identify one business entity to represent the group;
  • They have also added that while this style of seating is primarily for ground floor businesses, cellar and second floor participants on a route may also be considered though all participating businesses need to have a Food Service Establishment permit through the DOHMH. 

Rules:

  1. You must coordinate with participating food service establishments;
  2. Notify residents and other stakeholders on the proposed route; “notify,” not “seek permission”
  3. Adhere to an agreed upon schedule for the temporary street closure based on these guidelines:
    • Fridays 5 PM to 11 PM 
    • Saturday and Sunday – 12 PM to 11 PM 
  4. Unless otherwise notified by the City, the Open Restaurants program will last until Sept. 7, 2020;
  5. Manage street closure barricades (set up, oversight, break down);
  6. Set up/break down of movable tables and chairs for public seating (if any);
  7. Clean and remove trash from the locations during the closure;
  8. Ensure that you adhere to all seating guidelines in accordance with Open Restaurants;
  9. Establishments participating in the Open Streets program must apply for and meet all criteria for Open Restaurants;
  10. Applicants will facilitate Open Restaurants certification for all Establishments included in Open Streets;

*Establishments that are unable to self-certify for purposes of “Open Restaurants” may still be able to participate in the temporary street closure program.

Guidelines:

  • Applicant must provide emergency lane of 15 feet. Where this is not possible on a given roadway, organizations must work with DOT and FDNY to ensure proper emergency access at all times;
  • Food service establishments may extend seating beyond the curb lane, up to the 15-foot emergency lane for the duration of the temporary street closure;
  • Roadway seating may not exceed the width of business frontage;
  • Bike lanes may be included in the 15-foot designated emergency lane;
  • Roadway seating must be sited at least 15 feet from a hydrant and 8 feet from a crosswalk;
  • Individual businesses must delineate their footprint with some type of barrier element;
  • Tables and chairs must be provided by applicant and must be removed from the expanded zone at the end of each day.

Application Requirements:

  1. Provide a site seating and safety plan;
  2. Provide an outreach plan;
  3. Provide a “run of show”
  4. Provide a management plan;
  5. Provide a complete list of the establishments on the block that are participating. 

Similar to the first edition of “open seating” applications, this should all be very straightforward and self-explanatory process. However, if you should need assistance, we’re here for you.  Contact Heather Kirk at (212) 219-1193 or Heather@HelbraunLevey.com
 
Check out these two links below for additional information:
 
Eater Article on NYC Open Streets
 
NYC Guidelines



Reopening Guide – Labor and Employment by Megan Shaw 

It’s time for installment #3 of the Helbraun Levey (& friends) reopening guide.  And just a quick note before we take this deep dive into the specifics of legally protecting yourselves and your businesses:
 
It’s incredibly important to communicate with your staff.  Whether we’re talking about actively employed staff or those awaiting the reinstatement of their employment, you MUST make all of them aware of your plans regarding the business’ re-opening.  And while we understand that there remains a great deal of uncertainty in the weeks ahead, maintaining that open and transparent line of communication with your staff will be the first step towards limiting your liability as you continue trying to navigate these choppy waters.
 
Now, let’s dig in…
 
HEALTH & SAFETY PROTOCOLS
For the most updated and detailed information on how to make your workplace safe for your employees, we encourage you to regularly monitor guidance released by OSHACDC, and NYC DOHMH. To give you a sense of some of the basic requirements – and recommended best practices – we’ve provided a preliminary checklist below.
 

  • Provide masks or face coverings to all employees, free of charge. This is now required by law.
    • If employees would prefer to wear their own mask at work, it is still your responsibility as an employer to ensure that those face coverings are CDC-compliant.
    • Unless the employee requests an accommodation relating to a medical condition or other protected justification, no employee should be permitted to work without a CDC-compliant face covering.
  • Maintain additional personal protective equipment (PPE) on the premises for employee use, including, but not necessarily limited to, masks, gloves, face shields, personal hand sanitizers, etc.
  • Establish physical distancing measures to be actively enforced amongst your staff.
    • Examples = use staggered shifts, fill schedule with part-time employees; schedule staggered employee meal breaks, as long as breaks still comply with NYLL; implement one-way traffic patterns throughout the kitchen and similar tight spaces.
  • Enforce healthy hand hygiene by requiring that employees wash their hands at a certain regularity.
  • Conduct mandatory daily, pre-shift health screening protocol for your employees. This is now required by law. 
    • Employees must certify that they have not experienced COVID-19 symptoms, have not received positive COVID-19 results, and have not been in close contact with any confirmed/suspected COVID-19 case. Temperature checks are recommended, but not required. 
    • You should formally document all employee daily health screening responses and maintain them in accordance with applicable confidentiality laws. Please note, however, that you may not keep records of specific employee health data (e.g. body temperature measurements).
  • Implement a stay-at-home policy requiring workers to stay home when sick. Please also note that employees who arrive to work sick – or become sick at work – must be sent home immediately.
  • Report any employee’s positive COVID-19 test result to your state or local health department. This is now required by law.

As a reminder, you are required by NYS law to develop a written safety plan for your business that outlines the specific COVID-19 safety and prevention measures being implemented in your workplace. To streamline the implementation of your new protocols, we strongly recommend that you draft a single health/safety policy that incorporates the NYS requirements and your new employee-specific protocols. The sooner you can get this policy distributed to your staff, the better. Please DO NOT half-ass this.  This is one of those items that could literally be the difference between being able to defend a lawsuit and not.  Take it seriously and enlist the help of a professional to assist.  We have already done many of these for our more proactive clients.  It’s time for everyone else to get on board now too, though, because you know that eventually, the [frivolous] lawsuits that plagued the restaurant industry pre-COVID will soon return.  

OUT WITH THE OLD, IN WITH THE NEW POLICIES
Although we all know that you’ll be implementing a number of new safety precautions (some of which are addressed above), you’ll also need to change other policies and practices to accommodate the new normal. Now is the time to conduct a comprehensive audit of your existing policies and to make the necessary updates that account for recent legislation, as well as any changes made to your general business operations. 

Let us help you. We have a whole section of our firm that focuses on these issues specifically, all day everyday.  Not only is our information up-to-the-minute accurate, but we are actively doing this work for countless restaurants and bars throughout NYC.  So, there’s an experience factor here that should not be discounted as well. Here’s some notes to get you started…

  • Update your onboarding materials to ensure that your documentation is fully compliant with applicable law. Take a look at your job application, employee handbook, tip policy, wage notifications, etc.  and if you have questions, call us.
    • No matter what, you’ll need to update your documentation to include all changes made in the applicable law in response to COVID-19.
  • Review job descriptions, and issue (or re-issue) updated copies to employees.
    • It’s very likely that your existing job descriptions will need to be updated and reissued to include the new tasks being performed by employees on a day-to-day basis.
    • You may want to consider cross-training your employees to account for any additional changes that may occur in the workplace, but we urge you to remember that employees must still receive notice of their responsibilities in each role and compensated appropriately for each role.
  • Ensure that everyone on your payroll is being properly classified under the law.
    • Exempt v. Non-Exempt?
    • Employees v. Independent Contractors?
  • Confirm that your workplace postings include ALL notices required by federal, state, and local law. Please note that changes have been made since the beginning of 2020.
  • Train all supervisors/managers regarding any changes made to existing policies. If your managers aren’t enforcing the updated protocol – or don’t even know the new policies that need to be enforced, for that matter – you risk exposing the business to great liability.

RECALL, HIRING, & ONBOARDING PROCEDURES
Whether you are recalling former employees – or hiring new ones – you’ll need to be sure that your recruiting and onboarding procedures remain consistent, objective, and compliant throughout the entire re-opening process.

  • Implement a re-hiring plan that allows for the phasing-in of employees’ return to work and can be adjusted based on the business’ needs and in preparation for any future reductions/changes.
  • Maintain objective, non-discriminatory factors for selection for hire and/or rehire.
    • You must be mindful of the potential claims that will inevitably be brought by employees who are recalled after others, passed up for new hires, or not recalled at all.
  • Determine whether your pre-COVID employees were formally terminated, temporarily laid off, or furloughed. Did you know there was a difference, or that it matters?  Well, it does, and could present issues on a moving-forward basis. This will dictate whether the employee should be formally re-onboarded or simply reinstated as an active employee.  Missteps here, although seemingly innocuous, could prove costly.
    • Terminated employees must be formally onboarded as new hires.
    • While furloughed employees do not customarily need to be formally onboarded, we strongly encourage you to treat these employees as new hires as it relates to the onboarding process. 
  • Issue re-hire (or new offer) letters to all employees.  This is another place where we have been actively involved with many of our clients.  These letters play a big factor in future lawsuits.  If it’s solid, you’re likely in good shape.  If it’s incorrect or incomplete, you could be in trouble.
    • Should include start date, compensation, applicable benefits, and details of the COVID-19 health/safety protocol you’ll be implementing. 
  • Verify (or re-verify) that each of your employees is authorized to work for you.
    • As a reminder, you must have a complete I-9 Form on file for every one of your employees. This is a great time to do an audit of your I-9 folder.
  • Ensure that every single employee completes the same onboarding paperwork, whether the individual is a new hire or not. 
    • This must include the notices required under applicable law, many of which have changed or been supplemented already in 2020.
    • Be sure to re-issue NYLL wage notifications before any change in compensation.
  • Provide all employees with your updated employee handbook, ensuring that they sign/acknowledge receipt. Be sure to set a hard deadline for returning this acknowledgment.

PAID LEAVE, BENEFITS, & ACCOMMODATION REQUESTS
Whether employees remained on the employer’s benefits plans or not, certain notices or actions may be required to stay compliant. Similarly, a variety of paid leave policies are now mandated by law and must be communicated to your employees.

  • Create an objective plan on how you’ll handle employees who are unable or unwilling to return to work, whether now or in the future.
  • Update existing employee leave policies to address the FFCRA and NYS PFL requirements.
  • Train managers on revised policies and protocols and preventing COVID-19 related harassment, discrimination and retaliation. 
    • Specifically, managers should be advised of their personal liability under FFCRA.
  • Be prepared to receive and assess employee requests for (reasonable) accomodations. 
    • At a minimum, you will be required by law to engage in a cooperative dialogue with the requesting employee. Take a look at the updated DOL, EEOC, and NYS/NYC guidance regarding employee accommodation obligations specific to COVID-19 pandemic.
  • Determine whether any employee benefits available to employees prior to their termination or furlough need to be reinstated. Consider, for example, whether your employees still have access to their sick leave, as mandated by applicable NYC law.

WAGE & HOUR CONSIDERATIONS
Most operators were forced to cut employees’ hourly rates and/or salaries at some point during the crisis, some may have needed to make changes to employees’ pay during the reopening process, and many have been concerned with meeting certain thresholds in order to qualify for full loan forgiveness under the PPP. Despite the circumstances, though, all wage and hour laws remain in full force and effect.

  • Provide all employees with the legally-mandated notices regarding their rates of pay.
  • If employees had their pay rates changed (or if they were reclassified from exempt to non-exempt), consider when and how to return them to their previous pay rates and classifications.
  • Ensure that all employees are being paid in accordance with minimum wage laws.
    • In New York, no hourly employee should be making less than $15.00/hour; no salaried employee should be making less than $1,125.00/week.
    • Remember, too, that the tip credit threshold in New York differs between service employees and food service workers. So while a traditional front-of-house employee can have up to a $5.00/hour tip credit deduction, a delivery person’s deduction cannot exceed $2.50/hour.
  • Provide tipped employees with a compliant tip policy, requiring them to sign/acknowledge receipt of the new policy. Please note that your existing tipping policy will likely need to be changed to account for the changes in business operations. 
    • Under no circumstances should a back-of-house employee be receiving tips/gratuities. And as a reminder, managers/supervisors are still strictly prohibited from accepting tips, as well. Not everything is this black and white though. Need help figuring out what to do with your tips during a manager-only shift? We’re here to help.
  • Ensure that employees are paid for all time spent participating in their daily pre-shift health screenings.

 
Ok.  That was a lot, we know.  Today’s reopening installment was all about protecting your business. And we really couldn’t skimp there. We know that you all are busting your asses to survive this nightmare. And we don’t want to see all of your hard work go up in flames because of some bullshit paperwork issue.  That is literally what we’re here for.  Let us make sure that you’re buttoned up and protected, so you can focus on running the day-to-day.  Every one of those NYC hospitality business vessels out there needs their Captain focused on what they do best. And that very likely isn’t paperwork.
 
Contact Megan Shaw today for assistance with any of the above.  She can be reached at Megan@HelbraunLevey.com or (212) 219-1193.


Here’s a column about a cool culinary high school from our friend Kerry Diamond, Editor of Cherry Bombe:

Food and Finance High School by Kerry Diamond

Did you know that New York City has a culinary-focused public high school? Most food folk I know are happily surprised to learn that such a place exists. Located in Hell’s Kitchen, it’s called Food and Finance High School, and it’s filled with 400 students, test kitchens, and a dedicated culinary faculty. In March, coronavirus sent the students packing and with it, all of their programming and special events. The junior class was especially devastated to lose their Junior Showcase. It’s as important to them as prom was to the plot of 16 Candles. (Hi, GenXers.) These young hospitality people weren’t going to let COVID-19 stop them. In April, they decided to turn the Junior Showcase into a magazine called Pass The Spatula, and they kept the theme that they picked ages ago: Trailblazing Chefs of Color. The entire magazine is devoted to chefs of color of the past, present, and future, from the slaves forced to cook for the founding fathers to the exhilarating talents of today, names like Kia Damon and Lazarus Lynch. 

A few facts about the student body. 98 percent of them are young people of color. 85 percent of their families live below the poverty line. They are our future employees, bosses, competitors, and partners. They are the future editors of Bon AppetitFood & Wine, and maybe my own magazine, Cherry Bombe. They care deeply about representation, diversity, and inclusion. They have lots of thoughts about today, tomorrow, and the years ahead.

Their magazine is 10 bucks (+5 for shipping) and I know you can afford that. Order a copy or two, give the magazine a read, and get involved with the school if you can. Food and Finance High School is right in our backyard and we should be doing everything we can to make it the most shimmering spot in the country. Check out the Times article on the project and visit Pass The Spatula’s website to pre-order. Want to get involved with the school, or donate? Email eliza@foodfinancehs.org

https://www.nytimes.com/2020/06/30/dining/pass-the-spatula-magazine-food-and-finance-high-school.html

https://www.passthespatula.com/


RIP:  Milton Glaser, Carl Reiner and my dad, Stephen Helbraun.  Three born and bred New Yorkers who left the world a funnier, more artistic and loving place.

As Jerry and the boys liked to sing:  We’re all confused, what’s to lose?/ You can call this all the United States Blues/ Wave that flag, wave it wide and high.

Happy 4th and Good night,
David

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