December 2012
Founded in 1933, the Indiana Restaurant represents over 1,600 member restaurant properties and industry-related services companies. It is these members that help make the foodservice industry the nation's largest private sector employer and one of the state’s most politically active and public service oriented industries. Our members are the cornerstone of the Indiana community and economy.
Same-Sex Harassment Claims: A Growing Trend in Employment Litigation Brian L. McDermott / Ebony A. Reid
In the workplace harassment discussion, same-sex harassment is often overlooked by employers. That oversight can be particularly problematic for employers in the restaurant industry. To the extent restaurants tend to promote a jovial and carefree atmosphere, employees may not understand the distinction between appropriate and inappropriate conduct, especially as it pertains to co-workers of the same sex. Furthermore, employers who are less familiar with same-sex harassment may be inexperienced when it comes to handling such situations. For instance, employers may ignore inappropriate conduct between same-sex employees, considering it nothing more than “horse play” or instances of “boys will be boys.” Not approaching same-sex harassment with the same level of seriousness afforded other forms of harassment is imprudent and increases the risk of costly litigation, as evidenced by a recent settlement reached between a New York steakhouse and the Equal Employment Opportunity Commission (“EEOC”).
Supreme Court resolved a split in the federal courts of appeals by ruling that male-on-male sex harassment violated Title VII if the harassment was based on sex and not the man's sex orientation. In other words, as long as an employee can show that the harassment was based on gender, he or she can allege hostile environment sex harassment.
In that settlement, a 42-month consent decree filed in federal district court provides that the restaurant will pay $600,000 to settle a lawsuit filed by the EEOC on behalf of 22 male waiters who alleged that male managers sexually harassed and retaliated against them. The alleged harassment included inappropriate physical touching and highly offensive comments—mostly advanced by a single manager. The waiters also alleged that the restaurant retaliated against them by assigning them less desirable job tasks and threatening to terminate their employment.
As demonstrated by a case from the Seventh Circuit Court of Appeals, whose jurisdiction covers Indiana, restaurant employers in Indiana should especially be mindful of inappropriate interactions between same-sex employees. In Cooke v. Stefani Management Services, Inc., the Seventh Circuit affirmed a jury award to a restaurant bartender who alleged he was sexually harassed by the gay general manager of the restaurant. There, the plaintiff alleged that his general manager subjected him to a litany of sexual propositions, inappropriate touching, and nonverbal gestures of a sexual nature. The plaintiff complained to the assistant manager, but no action was taken. After a jury trial, the restaurant was found liable for same-sex harassment and the plaintiff was awarded monetary damages.
The waiters’ lawsuit alleged violations of Title VII of the Civil Rights Act of 1964. In 1998, the United States Supreme Court held in Oncale v. Sundowner Offshore Services that an individual can bring a claim for workplace harassment when the harasser and the harassed employee are the same sex. In Oncale, the male plaintiff worked on an offshore drilling platform with a crew of eight men. Three co-workers, two of whom had supervisory authority over the plaintiff, subjected him to humiliating sex-related conduct in front of the crew. They also physically assaulted him in a sexual manner and threatened to rape him. Although the plaintiff complained, no action was taken; in fact, the safety compliance clerk called him a name suggesting he was gay. The United States
Although the New York steakhouse denies the waiters’ allegations in the consent decree, in addition to the monetary settlement, the restaurant must establish an employee complaint hotline for reporting alleged discrimination, distribute to all employees a revised policy prohibiting sex harassment and retaliation, conduct anti-discrimination training, post a notice to employees in the workplace, submit to monitoring by the EEOC, and submit written reports of discrimination to the EEOC. The restaurant is also required to provide one-on-one sex harassment training and issue disciplinary actions to the alleged harassers.
While the majority of sex harassment EEOC charges are filed by women, according to EEOC statistics, the percentage of sex harassment complaints filed by men has steadily grown. In 2011, 16.3% of sex harassment charges were filed by men, while in 1997 charges filed by men comprised only 11.6% of all sex harassment charges. The EEOC has noted that while it
Story Continued on page 2... Page 1
Same-Sex Harassment Claims Story Continued... does not keep statistics about the sex of the harassers in those charges, anecdotally, many of the charges appear to involve same-sex harassment.
Mastercard October Rate Adjustments Mastercard Old Rate
Mastercard New Rate
Key Entered Non-Regulated: 1.64% + $0.16
Key Entered Non-Regulated: 1.60% + $0.15 (DECREASE)
Key Entered Regulated: 0.05% + $0.22
NO CHANGE
Merit I Non-Regulated: 1.64% + $0.16
Merit I Non-Regulated: 1.60% + $0.15 (DECREASE)
Merit I Regulated: 0.05% + $0.22
NO CHANGE
Because employers have the same obligations to protect employees from same-sex harassment as they do other forms of harassment, employers should review their harassment policies to determine if the provisions clearly prohibit same-sex harassment. Additionally, employers should include same-sex harassment as part of any harassment training. Implementing the appropriate measures and policies as related to all forms of harassment, including same-sex harassment, can promote a positive work environment and reduce the chance of embarrassing and costly litigation.
Stop Letting Credit Card "Cost Creep” Affect Your Bottom Line Brought to you by Heartland Payment Systems By David Gilbert, President, Hospitality Group
Mastercard October Newly Created Rates Key Entered Prepaid
1.76% + $0.20
Merit I Prepaid:
1.76% + $0.20
Anthony DiMattia finished sorting out the previous night’s receipts, placed his liquor and produce orders and checked the day’s reservations to ensure he had the proper staffing. It was a typical day in the life of this restaurant owner — until he opened the statement from his card processor. Aside from the confusing interchange rates and various fees he had learned to gloss over, there was an “IMPORTANT UPDATES” section that caught his eye, “…We also would like to inform you that VISA, MasterCard, and Discover have recently announced changes to various rates and fees effective October 1, 2011. To defray certain costs, you may see a nominal increase in your rates and fees…” Despite his frustration, Anthony considered this increase like “death and taxes” and assumed he had no choice but to pay it. Anthony DiMattia is a fictitious character, but his story is real for hundreds of thousands of small to mid-sized restaurant owners/operators like you who may fall into this trap. While accepting credit and debit cards in your restaurant offers many advantages and has become a crucial part of the way business is conducted, for many restaurants, that cost continues to climb and restaurateurs don’t understand that this is a controllable expense. Twice a year—during the months of April and October—major card brands (Discover, MasterCard and Visa) adjust their bank interchange rates, potentially affecting what businesses like yours are being charged by their card processors. These adjustments typically don’t amount to much, and sometimes the new rates are actually lower than the previous ones. But ask yourself, when’s the last time your processor lowered your rates?
Page 2
Very soon, you may receive an increase notice in the mail or an update on your statement like the one illustrated above, as many card processors will take advantage of the October rate adjustment by charging significantly higher rates and passing them off as part of the interchange adjustment — also know as “Cost Creep.” The sad part is, most processor’s statements are so complex and confusing that it’s hard to decipher where all of the fees are coming from—and many restaurant owners simply do not have time to question them. That’s exactly what these card processors are banking on in order to mislead their clients into thinking the higher fees are being passed along from major card brands. Don’t be fooled. As of this writing, MasterCard has posted their October adjustments (listed below), and the only changes affecting your business are reductions in non-regulated MasterCard Key Entered and Merit 1 debit card transactions, as well as the creation of a new category for prepaid card transactions for both MasterCard Key Entered and Merit 1. Discover and Visa haves yet to announce any rate adjustments that would affect restaurants. However, the issue is not with the card brands. As you can see, non-regulated rates for Key Entered and Merit I transactions were actually lowered and regulated rates for these two types of transactions remained the same. So unless you have a significant number of customers who use prepaid cards, you should not see a noticeable change in your processing costs. If you do, or if you receive an increase notice, share this article with your card processor and ask them to explain how they came up with their increased fees — because you know they’re not from the October adjustments. Here’s a better solution: work with a processor that promotes fair credit, debit and prepaid card processing practices on behalf of small and mid-sized businesses like yours. For more information, visit MerchantBillofRights.com or email RestaurantSolutions@e-hps.com.
Endorsed Providers
Tourism agency presents awards to hospitality industry contributors The agency unveiled a new award, named in Dobis' honor as the Chester F. Dobis Award for Public Service in Hospitality. John Livengood, president of the Indiana Restaurant Association and the Indiana Hotel Lodging Association, received the award for his 30 years of dedication to the association. HAMMOND | The South Shore Convention and Visitors Authority has honored five people and three businesses for making Northwest Indiana more attractive to visitors. Speros Batistatos, president and CEO of the tourism agency, presented the 2012 Hospitality Awards on Wednesday at the annual holiday reception at the Indiana Welcome Center. About 300 members of the tourism and hospitality industry attended. Microtel Inn and Suites of Michigan City was honored as Hotel of the Year, Towle Theater of Hammond was awarded for staging "A Fabulous 50s Swank 60s Christmas" and The Times Investigative Editor Marc Chase was awarded the Attraction of the Year award for his and others' work in establishing the South Shore Civil War Memorial Trail. Also honored were Joe Michalik, of Crown Point, as Volunteer of the Year; state Rep. Charlie Brown, D-Gary, as elected official of the year; and Bistro 157 in Valparaiso as restaurant of the year. Outgoing state Rep. Chet Dobis, D-Merrillville, received the agency's Lifetime Service Award for 42 years of achievements in the General Assembly.
INDIANA RESTAURANT & LODGING ASSOCIATION
Stars of the industry 2013 Effective January 1st The Indiana Restaurant Association and the Indiana Hotel & Lodging Association will become one. The Stars of the Industry is your chance to honor your employees from around the state within both the hotel and restaurant community who have gone above and beyond the call of duty. The evening will feature a banquet, reception and awards presentation. A nomination form and descriptions of the award categories are included in this newsletter on page 4 & 5! Page 3
DEADLINE FOR ALL ENTRIES: POSTMARKED FRIDAY, JANUARY 8, 2013 Or submit your nominations online at indianahotels.org/industry.htm or indianarestaurants.org
INDIANA RESTAURANT & LODGING ASSOCIATION
Stars of the industry 2013
nominate
T U E S D AY, F E B R U A RY 5 , 2 0 1 3 THE NEW ALEXANDER HOTEL
333 S. DELAWARE ST. • INDIANAPOLIS, IN 462041 ENTRY FEE: There is no fee to nominate a candidate for any category. However, there will be a fee to attend the Stars of the Industry Dinner on February 5, 2013. You will receive an invitation in the mail at which time you can pay for yourself or any of your nominees to attend the dinner or you can include payment information on the back of the nomination form. AWARD RULES 1. The nominee does not have to be an InRLA member, however only InRLA hotel members may be submitted as Indiana representatives in the National AH&LA Competition. 2. Only one nominee may be entered per establishment, per category. 3. Documentation may be provided. Examples include any material substantiating the award entry, such as photos, letters of commendation, guest comment cards, news clippings, videos and other support materials for the judges’ consideration. Don’t forget to mention special services that have been accomplished, outstanding leadership qualities or heroic deeds that have been performed. All nominees will be honored with a certificate and pin from InRLA. Each category will have an overall winner selected and recognized with an additional award. The establishment of category winners will also receive a recognition plaque. SUBMIT NOMINEE PHOTO: Nominees will be featured in a slide show during the awards ceremony. Email a photo of your nominee to: dscott@LMVconsulting.com
AWARD CATEGORIES: In order to recognize more of our top employees, You may nominate one employee for both Front
and Back of House. A winner will be recognized for each award for full service and select service hotels or independent or chain restaurants. OUTSTANDING LODGING EMPLOYEE OF THE YEAR: FRONT OF HOUSE Recognizes a non-management employee (e.g., concierges, housekeepers, etc.) who goes above and beyond normal job responsibilities. Nominees are judged on outstanding and unusual service to the property, to the guests, and to the community. OUTSTANDING LODGING EMPLOYEE OF THE YEAR: BACK OF HOUSE Recognizes a non-management employee (e.g., cooks, hr, accounting etc.) who goes above and beyond normal job responsibilities. Nominees are judged on outstanding and unusual service to the property, to the guests, and to the community. OUTSTANDING LODGING MANAGER OF THE YEAR Recognizes exceptional performance by a supervisory employee (e.g., food & beverage manager, front desk managers, etc.) to their subordinates, to guests, and to the community. OUTSTANDING RESTAURANT EMPLOYEE OF THE YEAR: FRONT OF HOUSE Recognizes a non-management employee(e.g., host, server, bartender, etc.) who goes above and beyond normal job responsibilities. Nominees are judged on outstanding and unusual service to the company, to guests, and to the community. OUTSTANDING RESTAURANT EMPLOYEE OF THE YEAR: BACK OF HOUSE Recognizes a non-management employee (e.g., cooks, preps, expediters, dishwasher/busser, admin, etc) who goes above and beyond normal job responsibilities. Nominees are judged on outstanding and unusual service to the company, to guests, and to the community. OUTSTANDING RESTAURANT MANAGER OF THE YEAR Recognizes exceptional performance by a supervisory employee (e.g., managers, executive chef, kitchen mgr., private dining mgr, etc) to their subordinates, guests and to the community. Page 4 QUESTIONS? Call Debbie Scott at 317.673.4211 or 800.678.1987 (toll free) or email dscott@LMVconsulting.com
DEADLINE FOR ALL ENTRIES: POSTMARKED FRIDAY, JANUARY 8, 2013 Or submit your nominations online at indianahotels.org/industry.htm or indianarestaurants.org
nominate
Stars of the industry 2013
----------- NOMINEE APPLICATION ----------Mail to: InRLA 200 S. Meridian St., Ste. 350, Indianapolis, IN 46225 or Fax to: 317.673.4210 or or submit online at indianahotels.org/industry.htm or indianarestaurants.org
Please complete a form for each nominee, or submit online at indianahotels.org/industry.htm or indianarestaurants.org. All nominees will be recognized during the banquet with a pin, certificate, and statement recognizing their accomplishment. CONTACT PERSON’S INFORMATION Name ____________________________________________________ Title __________________________________________________ Full Service Hotel Select Service Hotel #of Rooms ___ Property/Company _______________________________________________ Independent/Regional Restaurant Chain Restaurant
(Brand located in 5 or more states.)
Address ______________________________________________________City ______________________________ Zip _____________ Phone (_____)_________________________ Email ________________________________________________________________________ How long has this nominee been in the Industry? _________How long has this nominee been in their current position? ________ Please describe outstanding service to the establishment. Provide examples and give as much specific information as possible. Printed and other supporting materials may also be included. Please provide how this nominee provides outstanding service to the company:
Please provide examples of how this nominee has performed above and beyond their job duties. Include professionalism and teamwork:
Please provide examples of how this nominee has provided outstanding service to guest needs:
Please provide examples of this nominee’s initiative:
Please provide any recent awards/recognitions/community involvement the nominee has received or been involved in the last year:
Page 5
Do you own or manage a Hotel or Restaurant? Are you buying your natural gas from Citizens Gas Company? Do you know that you can reduce your heating bills by up to 41%? You are entitled to a FREE program called "Citizens Select", which will cut your bills by hundreds, if not thousands of dollars per year
For a FREE audit and savings report, call right now!
Call - 877-902-1389
Page 6
Please help welcome the newest Members of the IRA family! We are proud to announce our newest members. Please extend a warm welcome to them! Blu Martini Russ Allen Indianapolis, IN
Kilroy's Bar and Grille Chris Burton Indianapolis, IN
Three D's Cafe and Pub Erin Heller Carmel, IN
Haub Steak House Larry Haley Haubstadt, IN
Sangiovese Ristorante Chris Evans Indianapolis, IN www.sangioveseristorante.com
Kemper CPA Group LLP Nick Rueger Evansville, IN
Jersey Mike's Franchise Systems Jeff Berns Libertyville, IN www.jerseymikes.com
Sullivan's Steak House John Stanley Indianapolis, IN
Mr. Oil Saver Bob Locke Bremen, IN www.mroilsaver.com
Request for Proposal - Cafe' Services The Indianapolis Marion County Public Library (IMCPL) is requesting proposals from qualified vendors to provide on-site Café Services for the Central Library located at 40 E. St. Claire Street, Indianapolis, IN 46204. You may pick up a Request for Proposal at the Indianapolis Marion County Public Library Service Center located at 2450 N. Meridian Street, Indianapolis, IN 46208 or obtain a copy from our webpage at: www.imcpl.org and scroll down to “Doing Business with the Library” click and scroll down to the Café RFP. Questions or concerns should be directed to: Miguel Ruiz, Accounting Contract Administrator at 317-275-4844 or mruiz@imcpl.org
Page 7
Now, optimiziNg the way you maNage iNcomiNg cash caN be oN your meNu. With Cash Flow Options from PNC and our PNC Advantage for Retail Businesses, we can help you take advantage of everyday untapped opportunities. Like accelerating your receivables. With next-day funding from PNC Merchant Services®, you can give your customers more ways to pay, while putting their payments to work faster. For uncovering opportunities to help improve your cash flow, visit pnc.com/cfo, stop by a branch or call 1-855-PNC-CFO5. SM
for the achiever in you
AccelerAte receivAbles improve pAyment prActices invest excess cAsh leverAge online technology ensure Access to credit
sm
All loans are subject to credit approval and may require automatic payment deduction from a PNC Bank Business Checking account. Origination and/or other fees may apply. Merchant Services provided by PNC Merchant Services Company and are subject to credit approval. Next-day funding valid on payment processing transactions when deposited to your PNC Business Checking account. PNC and PNC Merchant Services are registered marks of The PNC Financial Services Group, Inc. (“PNC”). Cash Flow Options is a service mark of The PNC Financial Services Group, Inc. © 2012 The PNC Financial Services Group, Inc. All rights reserved. PNC Bank, National Association. member FDic
Page 8