June 2011
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.
Form I-9 Employee Eligibility Verification - - Help is Now Online By law, U.S. employers must verify the identity and employment authorization for every worker they hire, regardless of the employee’s immigration status. To comply with the law, employers must complete Form I-9. Recently the U.S. Citizenship and Immigration Services (USCIS) launched I-9 Central, a new online resource center dedicated to Form I-9, Employee Eligibility Verification. This free, easy-to-use website builds on recent employment-related enhancements by providing employers and employees simple one-click access to resources, tips and guidance to properly complete Form I-9 and better understand the Form I-9 process. The launch of I-9 Central follows the introduction of other important USCIS employment-related resources. These resources include EVerify Self Check, a service launched in March that allows workers and job seekers in the United States to check their own employment eligibility status online, and an updated “Handbook for Employers: Instructions for Completing Form I-9” published earlier this year. I-9 Central includes sections about employer and employee rights and responsibilities, step-by-step instructions for completing the form, and information on acceptable documents for establishing identity and employment authorization. I-9 Central also includes a discussion of common mistakes to avoid when completing the form, guidance on how to correct errors, and answers to employers’ recent questions about the Form I-9 process. I-9 Central can be accessed at www.uscis.gov/I-9central The Handbook for Employers can be accessed at http://www.uscis.gov/files/form/m-274.pdf
Supreme Court decision will increase focus on E-Verify In the wake of the U.S. Supreme Court’s decision last week to uphold Arizona’s tough-on-employers immigration law, Congress and state legislatures are increasingly likely to look at ways to expand use of the federal E-Verify system. The high court affirmed May 24 that federal immigration laws do not preempt states from passing stricter controls on employers. At issue: a tough anti-immigration bill Arizona enacted in 2007 that allows the state to revoke business licenses for employers found to have knowingly hired employees unauthorized to work in the United States. The Arizona law requires most Arizona employers to use the federal E-Verify system to verify the work eligibility of new employees. The U.S. Chamber of Commerce challenged the law, arguing that it was preempted by federal immigration law. The Chamber also argued that because federal law makes the E-Verify program voluntary, a state cannot mandate it. The U.S. Supreme Court held that Arizona's license-revocation law falls within the authority that Congress chose to leave for the states. The court also said states are not restricted from making the E-Verify program mandatory. The high court's ruling is expected to increase the focus on E-Verify use at the federal and state levels. The National Restaurant Association is working with members of Congress on the creation of one federal employment verification system to avoid ending up with a patchwork of employment verification laws at the state and local level. While the use of E-Verify is mandated in Arizona, at one point it was forbidden in Illinois. "The NRA believes employers must know with certainty what their responsibilities are under employment verification laws -- regardless of where they are located," says Angelo Amador, the Association's vice president, labor and workforce policy. Five states have passed bills to mandate E-Verify use for all or most employers: Arizona, Georgia, Mississippi, South Carolina and Utah. A number of other states require state contractors or state agencies to use the system.
IRA Insurance Center Your Money. Your Voice. Your NEW Advantage! The power of your IRA membership has once again given you an advantage when it comes to your buying power for insurance products. IRA members have unique insurance needs. The IRA Insurance Center understands these needs and can provide members with access to innovative, industry specific insurance products and coverage at an affordable cost. The IRA Insurance Center can help you by creating a comprehensive insurance program that will protect your business and your employees while providing the BEST COVERAGE available to the restaurant industry. The IRA Insurance Center has created a "one stop shop" for you so that you can easily access all of your association member insurance solutions. Regardless of the size of your organization, from the self-employed to the large corporation, this new service takes advantage of the buying power of large numbers for many insurance products. · · · ·
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Hoosier Town Up For 'Most Fun' in America
Santa Claus is one of 30 finalists in the Best of the Road contest sponsored by USA Today and Rand McNally. The southwest Indiana town is competing with six others in the "Most Fun" category. Santa Claus says it was selected from more than 600 locales. (Santa Claus, Ind.) – The town of Santa Claus is one of 30 contenders in the Best of the Road contest sponsored by USA Today and Rand McNally. Competing with six other finalists in the category for “Most Fun,” Santa Claus, Indiana, was selected from over 600 locales. On June 23, five teams of travelers will journey from New York City to Los Angeles by July 15. Each team will visit six towns in an assigned category: most beautiful, most patriotic, friendliest, most fun, and best food, as well as points of interest en route. The teams will choose the number one town in each of their respective categories and the towns will be highlighted on the Rand McNally website and in the 2013 Rand McNally Road Atlas, as well as on USA Today’s Travel site. Winning towns will be announced on July 22. “We are so excited that Santa Claus, Indiana, is one of the finalists in the Best of the Road contest,” says Melissa Wilkinson, Executive Director of the Spencer County Visitors Bureau. “We’re proud to be considered one of the “Most Fun” towns in America.” Spencer County is home to nationally known attractions such as Holiday World & Splashin’ Safari, Lake Rudolph Campground & RV Resort, and Lincoln’s Indiana Boyhood Home with national and state parks. The Visitors Bureau encourages guests to stay overnight and visit the many attractions, shops, and restaurants. More details about the Rand McNally contest can be found at: www.BestOfTheRoad.com
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FDA to make enforcement and compliance activities accessible online New Web portal to include searchable database
Golden Apple, LLC www.eelisgoldenapplerestaurant.com
The U.S. Food and Drug Administration today announced that it is disclosing more information about inspections and court actions, and now has a Web portal on its enforcement activities as part of Phase II of the agency's Transparency Initiative. These actions are being taken to make FDA's enforcement and compliance-related activities more accessible, downloadable, and searchable online.
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Royalty Roofing www.royaltycompanies.com Vectren Energy Delivery www.vectren.com Wells Fargo Insurance Services www.wfis.wellsfargo.com
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The information includes a summary of the most common Inspectional Observations of objectionable conditions or practices made during inspections and a searchable Inspections Database that includes the names and addresses of inspected facilities, inspection dates, type of FDA-regulated products involved, and final inspectional classification. By the end of 2011, FDA will also begin to disclose additional information about FDA evaluations of filers, expand disclosure of Untitled Letters, and in appropriate situations, support industry efforts during a food recall to inform consumers of products that are not subject to the recall. Access to this information about FDA's enforcement and compliance activities will provide the following to the public and regulated industry: * More information about company practices that may jeopardize public health, as well as about companies that have had satisfactory FDA inspections. * Information about recall and enforcement activities that will help consumers make decisions about products. * Information about inspection results, which can be expected to create a greater incentive to bring practices into compliance with the law. * Information about food products that are not subject to a particular recall, which can help reduce consumer confusion. FDA Commissioner Margaret A. Hamburg M.D. launched FDA's Transparency Initiative in June 2009 in response to the Obama administration's commitment to openness in government. After holding public meetings and inviting written comments, FDA issued a report proposing 21 actions to increase disclosures about agency activities. The actions announced today stem directly from that effort and are among the first of the proposals to be implemented. For more information: FDA's Transparency Initiative http://www.fda.gov/AboutFDA/Transparency/default.htm Inspections Database: http://www.fda.gov/ICECI/EnforcementActions/ucm222557.htm The FDA, an agency within the U.S. Department of Health and Human Services, protects the public health by assuring the safety, effectiveness, and security of human and veterinary drugs, vaccines and other biological products for human use, and medical devices. The agency also is responsible for the safety and security of our nation's food supply, cosmetics, dietary supplements, products that give off electronic radiation, and for regulating tobacco products.
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Heartland Payment Systems Introduces Tip Manager to Assist Restaurateurs with Tip Distribution and Management Service will also ensure compliance with IRS regulations and wage and hour laws Heartland Payment Systems® (NYSE: HPY), one of the nation's largest payments processors, launches Heartland Tip Manager, a new service that offers restaurateurs a way to streamline tip distribution management. Tip Manager also integrates payroll data, credit card sales and credit card tip data from point-of-sale (POS) system. “Heartland understands that tip reporting can often be challenging for many restaurants. As the processor of one out of every seven restaurant credit and debit card transactions in the US, Heartland understands that restaurants need cost-effective products and services that streamline cash flow and increase profitability. We have developed Heartland Tip Manager to help address one of the toughest issues in the industry,” said Mark Strippy, Heartland’s executive director of payroll services. Developed with input from industry operators and a leader in restaurant software, Tip Manager also helps ensure compliance with IRS tip and reporting requirements and company tip policies. It also gives restaurant owners the ability to produce specific reports to assist with tip compliance in the event of an IRS audit or investigation. “One of the most noteworthy features of Tip Manager is that managers will be able to manage tips on a per-shift basis,” added Strippy. “This function will allow for easier tip tracking and will create an environment of much greater control for the restaurant operator.” This new service from Heartland, creates significant efficiencies for the operator by reducing the amount of manual data entry required to track, report and ultimately process payroll, with our integration between the POS/Tip Manager and Heartland’s Plus One Payroll. Additionally, Tip Manager provides restaurant operators the ability to create tip pool policies that will automate the calculation, distribution and taxation of tips that are shared among indirect tipped employees. Accurate accounting of the amount of tips received by indirect employees will provide the operator with the ability to properly report those cash tips, thereby increasing their wage claims which can result in an increased Federal Insurance Contribution Act (FICA) Tip Credit. Mid-sized restaurants can receive up to $25,000 in FICA Tip Credits. The Tip Manager software functions in conjunction with Heartland’s PlusOneSM Payroll as part of an integrated payroll solution. PlusOne Payroll enables faster processing and timely updates to ensure restaurateurs remain compliant with payroll, tax and human resources regulations. Tip Manager also works in conjunction with IRS endorsed programs for tracking tips — ATIP (Attributed Tip Income Program) and TRAC (Tip Reporting Alternative Commitment) — and supports compliance requirements of those programs. Heartland Tip Manager offers significant business benefits including:
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Direct integration to several POS systems to pull gross receipts and tip information to Tip Manager. Ability for management to override and approve tip distribution prior to sending to payroll. Ability to access and create more than one tip distribution policy so each shift can potentially have a different policy created to fulfill the needs of the restaurant. Flexible tip distribution policies available based on gross receipts, and cash and credit card tips. Compliance with IRS tip reporting mandates and wage and hour laws. The ability to have multiple direct employees share tips from the same ticket/large group/event. Augmented ticket-level POS sales/tip data providing additional reporting required to complete the annual IRS 8027 form. Greater 8027 form accuracy leading to a lower estimated tip percentage. Improved cash flow from the elimination of “negative deposits.” Improved profitability from FICA tax tip credits and cash benefits from the ATIP program. Improved operational efficiencies such as the elimination of management handling cash tips indirectly and dealing with disputes between direct and indirect tipped employees. Heartland, in partnership with the National Restaurant Association, Council of State Restaurant Associations and 44 state restaurant associations, empowers restaurateurs across America to improve their businesses with a full course of business solutions, including an exclusively endorsed suite of payroll services, tip management, card processing, gift marketing and check management services.
For more information about Heartland Tip Manager, please visit HeartlandPaymentSystems.com/Payroll or call 866.941.1HPS (1477).
Harassment and Teenaged Employees Brian L. McDermott & Ebony A. Reid Ogletree, Deakins, Nash, Smoak & Stewart, P.C. www.ogletreedeakins.com As summer quickly approaches, restaurants will be inundated with applications from teenagers looking for summer employment. While most employers have comprehensive sexual harassment policies and training programs, those measures are rarely tailored for a young workforce. Ignoring the implications of employing teenagers can lead to potential liabilities for employers, as evidence by a significant amount of harassment charges filed by teenagers with the Equal Employment Opportunity Commission (EEOC). The Commission’s fiscal year 2007 performance budget noted that the EEOC “has seen, through charges filed and anecdotal evidence, that discrimination is a problem for many in this group.” According to the Schuster Institute for Investigative Journalism, it is estimated that over 200,000 teenagers are sexually harassed each year. In fact, in 2004, the EEOC created the Youth@Work initiative, which educates teenagers and other young adults about their workplace rights, in response to the proliferation of workplace harassment directed at teenagers. Because of their youth, teens may be more vulnerable to sexual harassment; because of their youth they also may be more likely to engage in behavior unacceptable to a more seasoned workforce. Compounding the issue, teens may be uncomfortable with reporting harassment, while others are not aware of their rights. Neglecting to implement policies that address the dynamics of a young workforce can lead to lawsuits that normally would not be actionable if brought by an adult employee. That oversight can be particularly problematic for the restaurant industry whose employees consist primarily of part-time or seasonal teenaged and young adult employees. Because restaurants tend to promote a fun and carefree environment, teenaged employees may not understand the distinction between appropriate and inappropriate conduct. Furthermore, those who supervise teenagers may be teenagers themselves and are usually inexperienced when it comes to handling harassment situations. Nonetheless, the onus is on employers to pay special attention to harassment of teenagers—or face the risk of an unfavorable business reputation and costly litigation. For example, a national fast-food restaurant entered into a consent decree with the EEOC to settle allegations that a male teenaged employee was sexually harassed by a female supervisor, who was in her forties. There, the employee, who worked at an Indiana location of the fast-food chain, alleged that he was subjected to inappropriate sexual comments made by his supervisor, over the course of several months. The restaurant agreed to pay over $65,000 to settle the claims and to conduct training for supervisors and employees with a particular emphasis on harassment that may effect teens. Similarly, a national restaurant settled an EEOC sex harassment suit involving teenaged female employees for $225,000. There, a male general manager allegedly made repeated lewd comments to several female employees. In addition to the monetary settlement, the restaurant agreed to implement annual training for its managers and supervisors and to post a notice of the settlement in its workplace. As evidenced by a case from the Seventh Circuit Court of Appeals, whose jurisdiction covers Indiana, restaurant employers should especially be mindful of how their harassment policies are tailored for teenaged employees. In EEOC v. V& J Foods, decided in 2007, the Seventh Circuit cautioned employers that “the known vulnerability of a protected class has legal significance.” There, a terminated 16-year-old employee sued a fast-food chain for sex harassment and retaliation. Allegedly, the teenager was subjected to repeated inappropriate touching and sexual comments by her 35-year-old supervisor. Although the teenager allegedly complained to her shift supervisors and assistant manager, the restaurant took no action to remedy the alleged harassment. After the teenager’s mother complained to a shift manager, the alleged harasser fired the employee. The Seventh Circuit held that whether an employer has a reasonable mechanism for reporting harassment depends on the employment circumstances. Specifically, the court noted that although “an employer is not required to tailor its complaint procedures to the competence of each individual employee,” it should be particularly mindful of its teenaged workforce. The court stated: “Knowing that it has many teenage employees, the company was obligated to suit its procedures to the understanding of the average teenager.” Additionally, the court found that any retaliation against the employee for her mother’s complaints constituted retaliation against the employee. In another Seventh Circuit case, the court examined the intersection of statutory rape laws and sex harassment of teen employees. In Doe v. Oberweis Dairy (2008), a female teenaged employee brought a sex harassment suit against her employer after her shift manager was convicted of statutory rape. There, the court held that state age of consent laws determine whether an alleged harasser’s conduct was welcome. The Doe plaintiff was 16 at the time she had sex with her shift manager. Because the statutory age of consent in Illinois was generally 17 years of age, the court held that, as a matter of law, the plaintiff’s consent was ineffectual, and thus, the shift manager’s conduct was unwelcome. The court further warned: “An employer of teenagers is not in loco parentis, but he acts at his peril if he fails to warn their parents when he knows or should know that their children are at substantial risk of statutory rape by an older,
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Harassment and Teenaged Employees continued.... male shift supervisor in circumstances constituting workplace harassment.” Of particular note, the court highlighted that the restaurant industry is especially prone to sex harassment given the “entertainment atmosphere that can cloud the rules for appropriate conduct in the workplace” and high employee turnover. To avoid potential lawsuits, restaurant employers should review their harassment policies to determine if the procedures are clearly understandable to the average teenager, particularly if a large portion of the workforce consists of teenagers. This may include providing a hotline to report harassment or requiring employees to complain to a person more senior than a shift manager. Moreover, employers should provide harassment training specifically geared towards teen harassment. For instance, some companies have created training materials that use young actors to help emphasize the applicability of harassment laws to teens. Given the Seventh Circuit’s distinctions between teenagers and adults, Indiana restaurant employers should be especially diligent in recognizing harassment against teens. Being proactive can remedy negative behavior in the workplace and stave off embarrassing and costly lawsuits. Brian L. McDermott and Ebony A. Reid are attorneys with the Indianapolis office of Ogletree Deakins, a national labor and employment law firm. Brian can be reached at 317.916.2170 and brian.mcdermott@ogletreedeakins.com, and Ebony can be reached at 317.916.2124 and ebony.reid@ogletreedeakins.com.
USCIS Launches I-9 Central on USCIS.gov New Online Resource Provides Enhanced, Easy-to-Access Guidance for Employers and Employees WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) recently launched I-9 Central, a new online resource center dedicated to the most frequently accessed form on USCIS.gov: Form I-9, Employee Eligibility Verification. This free, easy-to-use website builds on recent employment-related enhancements by providing employers and employees simple one-click access to resources, tips and guidance to properly complete Form I-9 and better understand the Form I-9 process. “I-9 Central is the latest in our ongoing efforts to better serve the 7.5 million employers who use Form I-9 every time they hire an employee,” said USCIS Director Alejandro Mayorkas. “It provides critical information for all employers – whether they hire a single employee or hundreds – in an accessible, intuitive and comprehensive online format.” The launch of I-9 Central follows the introduction of other important USCIS employment-related resources. These resources include EVerify Self Check, a service launched in March that allows workers and job seekers in the United States to check their own employment eligibility status online, and an updated “Handbook for Employers: Instructions for Completing Form I-9 (M-274)” published earlier this year. I-9 Central includes sections about employer and employee rights and responsibilities, step-by-step instructions for completing the form, and information on acceptable documents for establishing identity and employment authorization. I-9 Central also includes a discussion of common mistakes to avoid when completing the form, guidance on how to correct errors, and answers to employers’ recent questions about the Form I-9 process. I-9 Central complements existing Form I-9 resources including the current Form I-9 Web page, the form instructions, and the abovereferenced “Handbook for Employers.” USCIS also offers free webinars on completing Form I-9. By law, U.S. employers must verify the identity and employment authorization for every worker they hire after Nov. 6, 1986, regardless of the employee’s immigration status. To comply with the law, employers must complete Form I-9. Visit or link to I-9 Central at www.uscis.gov/I-9central. For more information on USCIS and its programs, please visit www.uscis.gov or follow us on Twitter (@uscis), YouTube (/uscis) and the USCIS blog The Beacon.
Changes in ADA Accessibility Standards are on the Way On July 26, 1990, President George H.W. Bush signed into law the Americans with Disabilities Act (ADA). The ADA provided broad antidiscrimination prohibitions against disables individuals in several areas, including employment state and local government services and facilities, public accommodations, and telecommunications. Title III of the ADA contained proscriptions in the public accommodations area, which refer to establishments that cater to the public such as hotels, motels, and restaurants. To implement them, the Department of Justice (DOJ) issued regulations and adopted architectural standards issued by the Federal Access Board. These guidelines, called the ADA Accessibility Guidelines or ADA AG, took effect in 1991, imposing stricter standards for alterations begun after January 26, 1992 and new construction concluded in 1993 and later. During the succeeding 20 years, Title III’s provisions have been enforced both by the DOJ and the private suits where a prevailing plaintiff not only gets an order making facilities accessible, but also attorney’s fees and costs. The attorney’s fees can be significant and this has created an incentive for several plaintiffs’ firms to be active in filing suits, often for those who we call “serial plaintiffs”. WHAT’S NEW? On the 20th anniversary of the ADA, Attorney General Eric Holder issued a notice that the DOJ was adopting a new Rule, and replacing the 1991 ADA AG with a newer version (2010 Standards). The Rule and the standards are phased into effect in two stages. The DOJ Rule becomes effective six months after its publication in the Federal Register, while the 2010 Standards become effective 18 months after publication of the Rule in the Federal Register. The Rule was published in the Federal Register on September 15, 2010, so the effective dates are March 15, 2011 for the new Rule and March 15, 2012 for the 2010 Standards. Any new construction in which the last building permit is issued or certified (depending upon the jurisdiction) on or after March 15, 2012, or any alterations commenced on or after March 15, 2012 must comply with the 2010 Standards. New construction or alterations commenced on or after the effective date of the Rule, but before the effective date of the 2010 Standards, can either be done in conformance with the old or the 2010 Standards. Importantly, elements that were in compliance with the 1991 ADA AG as of March 15, 2012 do not have to be brought up to compliance with the 2010 Standards unless they are subsequently altered. Set out below is a summary of some of the changes to the architectural standards which are likely to impact the hospitality industry. REACH RANGES No changes were made for forward reaches, but the side reach ranges are lowered from a maximum of 54 inches (to the highest operable part) to 48 inches and raised from a minimum of 9 inches (to the lowest operable part) to 15 inches. This affects a number of elements including:
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Light switches, thermostats and clothes rods in accessible rooms;
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hair dryers and towel racks in bathrooms in accessible rooms; and
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hand dryers and soap- and paper- towel dispenser in accessible restrooms.
All of these items must be placed so that the highest operable part is no higher than 48 inches above the finished floor and no deeper from the face than 10 inches. If the object is more than 10 inches from the counter front for example, the reach range is less – 44 inches for objects within 10 to 24 inches of the front. ACCESSIBLE PUBLIC AREA RESTROOMS The 2010 Standards provide some regulatory relief to employers. For example, men’s restrooms with only one urinal will no longer be required to provide an accessible urinal. Also, the 2010 Standards allow greater flexibility for the placement of the centerline of the wheelchair accessible toilet (between 17-19 inches from the wall to the centerline, as opposed to the old 18 inches to centerline. But the ability to install a lavatory immediately adjacent to the water closet has been eliminated from the 2010 Standards. To allow for side transfers, the 2010 Standards prohibit lavatories from overlapping the clear floor space at water closets. It is possible to design an accessible restroom that is no larger but without the lavatory adjacent to the water closet, partly because the 2010 Standards allow items like grab bars, dispensers, coat hooks, and shelves to overlap the clear floor space necessary to approach the various elements. SALES AND SERVICE COUNTERS For the first time, the 2010 Standards establish different accessible lengths for counters based on the type of approach provided. If it is a forward approach, the accessible portions of the counter must be at least 30 inches long and no higher than 36 inches with knee and toe space. If it is a parallel approach, the Standard remains at 36 inches wide and no higher than 36 inches.
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Changes in ADA Accessibility Standards continued.... ACCESSIBLE ROOMS The new Standards provide that at least one guestroom with mobility features must also provide accessible communication features. The old ADA AG required all such rooms to have communication features. Also, not more than 10% of the guestrooms required to provide communication may be satisfied by putting those features in guestrooms with mobility accessibility. In addition, the new scoping provisions provide that both guestrooms with communication features and those with mobility features must be dispersed among the types of rooms. Importantly, the new Standard no longer allows a portable visual alarm option. Rooms with communication features must be equipped with a fire alarm which is permanently installed with audible and visual alarms. They must also have visible notification devices that alert room occupants of incoming telephone calls and a door knock or bell. For new and altered guestrooms, the doors must have adequate clear width to allow passage. This includes bathroom doors. There are some other changes to accessible rooms. ROOM RESERVATION POLICIES Effective March 15, 2012, hotels and motels must modify their procedures to ensure that individuals with disabilities can make reservations for accessible guestrooms during the same hours and in the same manner as other individuals. The reservation service must be able to identify and describe accessible features in the hotels in enough detail to reasonably permit individuals to assess whether a given hotel or guestroom meets their accessibility needs. They must ensure that accessible guestrooms of that type have been reserved, reserve upon request accessible guestrooms or specific types of guestrooms and guarantee that the specific guestroom reserved will be held. FIRST TIME STANDARDS FOR RECREATIONAL AREAS The 2010 Standards for the first time set accessibility standards for a number of areas, including pools, spas, saunas, steam rooms, gym equipment and golf courses. Because there were no existing standards, the safe-harbor provision discussed above does not apply to these elements. The new standards require that there be an accessible means of entry for larger pools and at least one accessible entry for smaller pools, as well as accessible means of entry for spas, saunas, and steam rooms. Because resort facilities do not have an accessible means of entry for existing pools, they will have to consider buying appropriate lifts or otherwise making these elements accessible. The 2010 Standards require that there be an accessible route in golf courses to connect all accessible elements, as well as the golf cart rental areas, bag-drop areas, tee grounds, putting greens and weather shelters. An exception allows the accessible route requirements to be met within the boundaries of the golf course by providing golf cart passage, as long as the specific width and curb cuts are met. Most golf courses probably already have most of the accessible paths necessary. The new Standards require that there be an accessible route to exercise machines and equipment and provide that at least one of each type of exercise machine must meet the clear floor space requirements. Significantly, the Standards do not require changes to exercise machines or equipment in order to make them more accessible to persons with disabilities. Unfortunately, most strength training equipment and machines are considered different types and there are many types of cardiovascular exercise machines. Two machines may share a clear floor space, but providing access and sufficient clear floor space will require much thought and may result in eliminating some machines, particularly in fitness rooms with limited space. THE BOTTOM LINE All in all, there are hundreds of changes from the 1991 ADA AG to the 2010 Standards. And the Department of Justice is more aggressively enforcing the Act’s provisions. Moreover, there is already a heightened awareness among advocacy groups and the disabled community at large, and many plaintiff’s lawyers are learning that Title III lawsuits can generate significant fees. The time to act is now. Hospitality employers should begin to put together a plan for ensuring that current facilities comply with the 1991 ADA AG, or are brought into compliance before the effective date of the 2010 Standards and the newly constructed or altered facilities are compliant with the 2010 Standards in or after the effective date.
New Directions for Small Business – Aiming for Profit June 24th – Westin Indianapolis Hotel 50 South Capitol Avenue
8:00 am 8:00 am 8:30 am 10:00 am 11:30 am 1:30 pm 3:00 pm
Registration opens Counseling and Conversations opens with coffee - experts available throughout the day Business Seminars – Session I Business Seminars – Session II Awards Luncheon Business Seminars – Session III Counseling and Conversations closes
Pre – registration payment is required on or before June 14th
The $50.00 Registration Fee includes attendance at three of the seminars, unlimited one-to-one meetings with the experts at Counseling and Conversations, and your meal at the SBA Awards Luncheon. Parking at the Westin Indianapolis Hotel is at a reduced rate of $15.00 for the day to pre-registered attendees. Additional parking may be available at Circle Center Mall or other garages.
Questions? 317/226-7272
U. S. Small Business Administration
Save the Date Indiana Restaurant Association
Industry Awards & Celebration
Are You Taking Advantage of the GINA Safe Harbor? By: Gregory P. Kult* Did you know that an employer may violate federal law by accidentally receiving an employee's family medical history? Fortunately, the EEOC has offered employers a helping hand. Are you taking advantage of the EEOC safe harbor when you make your ADA and FMLA inquiries? By now, employers with at least 15 employees should know about Title II of the Genetic Information Nondiscrimination Act of 2008 (“GINA”). Among other things, GINA prohibits covered employers from requesting an employee’s genetic information, which includes an employee’s family medical history. So, if you send applicants or employees to a doctor that you choose (for example, for a post-offer, pre-employment medical exam), consider instructing the doctor that he or she must not ask about family medical history. If you request medical information from the employee’s doctor (for example, for an FMLA certification for the employee’s own serious health condition or for an ADA employee medical inquiry), consider instructing the doctor not to provide you with family medical history. The EEOC, which enforces Title II of GINA, has created a safe harbor for employers who inadvertently receive an employee’s family medical history in response to a legitimate FMLA or ADA inquiry. To take advantage of the safe harbor, attach the notice that follows to your medical inquiry: IMPORTANT NOTICE CONCERNING MEDICAL INFORMATION The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. “Genetic Information” as defined by GINA includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services. PRACTICE TIPS:
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Use the safe harbor notice with an FMLA certification for the employee’s own serious health condition, an FMLA fitness for duty certification, and/or a lawful ADA medical inquiry.
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You do not have to use the EEOC’s exact language. If you choose not to, consider working with legal counsel in your effort to come up with language that helps you reduce the risk of liability for inadvertent receipt of family medical history.
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You do not have to send the safe harbor notice if the FMLA certification relates to the serious health condition of the employee’s spouse, child or parent, as it is understood that the very purpose of the certification is to give you family medical history to support the need for leave.
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There are limited exceptions that apply to voluntary wellness programs.
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Keep all family medical history that you receive in confidential medical files separate from the employee’s personnel file. You may keep the information in the same file in which you maintain employee medical information in compliance with the ADA.
Gregory P. Kult Wooden & McLaughlin LLP This article does not constitute legal advice, nor is it a substitute for familiarity with the most current statutes, regulations, ordinances and case law on this topic. Slight differences in factual context can result in significant differences in legal obligations. Consider seeking legal advice with respect to any particular situation.