The Dish- September

The Dish A P U B L I C A T I O N O F T H E N E W H A M P S H I R E L O D G I N G & R E S T A U R A N T A S S O C I A T I O N Issue No. 8 • September 2022 • Cover Photo: Owl's Nest Resort page p8 age p8 age 8 page 15 Learn more about LDiving earn more about LDiving earn more about Diving into iMentorship. nto iMentorship. nto Mentorship. A recap of the NHLRA AAnnual recap of the NHLRA AAnnual recap of the NHLRA Annual Golf GTournament olf GTournament. olf Tournament. Women in WHospitality omen in WHospitality omen in Hospitality page 12 Common Man helps to reach the C$1 ommon Man helps to reach the C$1 ommon Man helps to reach $1 million goal for Ukraine msupport. illion goal for Ukraine msupport. illion goal for Ukraine support. Ukraine Relief In UNH kraine Relief In UNH kraine Relief In NH

Lastchance Atkinson Resort & Country Club SHINES BRIGHT FOR ONE NIGHT Monday, November 14, 2022 AlliedMemberoftheYear BreweroftheYear Catering/VenueoftheYear ChefoftheYear InnkeeperoftheYear LifetimeAchievementAward LiveFree&GiveAward LodgingEmployeeoftheYear RestaurantEmployeeoftheYear RestaurateuroftheYear RisingStarAwardNominate THE INDUSTRY

Inside Y O U R G U I D E T O I S S U E N O . 8 Members Around Town 6 Celebrations and congratulations NHLRA TournamentGolf Thank you to everyone who came out for the 33rd Annual Golf Tournament 8 Save the Dates10 Notable events ahead Cover photo: The Lakehouse Venue at Owl's Nest Resort New Hampshire Relief for Ukraine Fund has exceeded the halfway mark to a $1 million goal 12 www.nhlra.com | 2 Ukraine Relief From NH 14 Raising Dough The NHLRA Education Foundation fundraiser at 900 Degrees In Manchester 25 NHLRA SolutionsMember Save time and money with the NHLRA's endorsed service providers 17 Season of Change Federal Appeals Court Recognizes Gender Dysphoria as Disability and NLRB Proposes New Joint Employer Rule

HAVENEWSOR PHOTOSYOU'DLIKE TOSHAREWITHUS? If you'd like to update us with any company news for our Members Around Town section, please email jjannetti@nhlra com NHLRA Director of Education and Workforce Development NHLRA Membership & Business Development Director NHLRA Social Media and Marketing Coordinator 2022 Chair of the Board 2022 VIce Chair of Lodging John Dunn Michael Timothy's Dining Group NHLRA President and CEO Mike Somers Amie Pariseau Samantha Poole Jillya Jannetti 2022 Vice Chair of Restaurants Nicole Barreira Great NH Restaurants Molly Rice Norby Woodstock Inn Station & Brewery Pam Bissonette and Sherri Ferns with Duprey Hospitality at the NHLRA Annual Golf Tournament. Amie Pariseau, NHLRA and Stacy Krecklow, owner at Ohana Kitchen, make plans for Diving into Mentorship. NHLRA Office and Events Manager AubreyLynn Goodale www.nhlra.com | 4

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MC Greenleaf Hut croo celebrated their summer with one last group dinner. The White Mountain Huts are shifting from summer to fall croos Shoutout to everyone who made this season such a success!

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8THANNUALSAUSAGEFEST

EARTHEAGLEBREWERY HOSTS

ars & Coffee is back at 603 Brewery and Beer Hall on Sunday, September 25 from 9 a m 2 p m

MEMBERS AROUND TOWN

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ook at this amazing Barefoot Wine Beach Cleanup Crew! Keeping Boston beautiful along the Charles River L MARTIGNETTIANDBAREFOOT WINECLEANASTHEYGO! ANATIONALHOLIDAY EVERYONESHOULD CELEBRATE!

603 BREWERY BRINGS BACK A FAN FAVORITE

he Friendly Toast celebrated National Cheeseburger Day with this beauty! Their house patty topped with cheddar cheese, everything bagel aioli, smashed cheddar tots, an over easy egg, arugula, caramelized onions, and crumbled bacon

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SENDINGOFFTHEAMCHUT CROOSINSTYLE

he 8th Annual Earth Eagle Brewery Sausage Fest kicked off on September 17. Guests enjoyed live music, Oktoberfest inspired food, and craft beer

On Monday, September 12, the NHLRA hosted its 33rd Annual Golf Tournament at Abenaqui Country Club in Rye, NH We welcomed 122 players this year for a picture perfect day by the Seacoast

1st Place Team: Bedford Village Inn

Nick Tinios (front, center) with his team

THE NHLRA 33RD ANNUAL GOLF TOURNAMENT AT ABENAQUI COUNTRY CLUB

We were delighted to welcome Michael’s brother, Nick Tinios, who kicked off the tournament with a thoughtful and heartwarming speech Nick and his team did outstanding in the tournament this year coming in 3rd place Congratulations are in order for Roedel Companies who placed 2nd, and the Bedford Village Inn for taking home the gold as the 1st place team.

Thank you to our staff, players, volunteers, sponsors, and everyone else who made this event possible We hope to welcome you all back next year!

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The NHLRA’s Annual Golf Tournament was established in 1989 by Michael J. Tinios. This event raises funds to support the National Restaurant Association’s Restaurant Advocacy Fund as it advocates for pro business policies at the State and Federal level. In addition to the Advocacy Fund, New Hampshire Lodging & Restaurant Association Education Foundation raised an additional $3,000 from raffles, mulligans, and the 50/50 hole competition The amount raised will financially contribute to educational opportunities for the current and future workforce of the hospitality industry

Owner Michael Buckley and NHLRA's Chair of the Board John Dunn came ready to play with their matching attire!

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SavetheDate

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The fund has already made it possible for the Rotary Clubs of Poland to purchase and distribute more than 200 tons of food to refugees in Poland and to Ukrainians still living in their home country Other critical programs the funds are supporting include the purchase of a Bloodmobile to serve as a field hospital in Ukraine, a day care and trauma counseling center for Ukrainian refugee children in Poland, and an orphanage/safe housing for children in Ukraine.

Started in May by The Common Man family of restaurants and their owner Alex Ray, the fundraiser, which hoped to assist Ukrainians living in their war torn country and those who fled to safety in Poland, morphed into a statewide effort with additional partners including former New Hampshire Gov John Lynch, WMUR TV, iHeart Media, Granite United Way, New Hampshire Fisher Cats, and the Rotary Clubs of Plymouth, NH and Warsaw, Poland

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NH RELIEF FOR UKRAINE FUND SURPASSES

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HALFWAY MARK TO $1 MILLION GOAL

“The war continues to rage in Ukraine and we need your help to keep the important work going to support the people so deeply affected by this crisis,” said Common Man owner and founder Alex Ray “We are touched by the donations from New Hampshire citizens and businesses that recognize the critical importance of this humanitarian aid”

The Common Man Family is matching every donation, dollar for dollar, up to $1 million, with the ultimate goal of sending $2 million in donations to be allocated to critical humanitarian relief efforts in Ukraine and Poland. The funds are distributed by Polish Rotary District #2331 for secure and reliable control that ensures funds go to their intended purposes.

With more than $600,000 raised thanks to the generosity of more than 2,200 donors, the New Hampshire Relief for Ukraine Fund has exceeded the halfway mark to a $1 million goal.

A member of the Plymouth, NH Rotary Club, Ray and project leaders spent a week back in May meeting and traveling with Rotarians in Warsaw and Zamosc, Poland They crossed the border and traveled to Lviv, Ukraine where they met Ukrainian Rotarians as they delivered food supplies to an orphanage and visited refugee centers. The group visited a convention center that was converted into a shelter, a Soviet era military barracks turned into a refugee center, a proposed children’s day care and trauma counseling center, and a warehouse coordinating emergency food deliveries into eastern Ukraine.

A benefit night held in early August by the New Hampshire Fisher Cats raised more than $10,000 for the fund, with the team donating 50% of individual ticket sales. In addition, 100% of the 50/50 raffle was donated back to the fund, 50% from the Fisher Cats and 50% from the winning ticket holders, Lansing Building Products..

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Checks made out to Granite United Way with NH Relief for Ukraine in the memo line can be mailed to: Granite United Way, 22 Concord St., Manchester, NH 03101

Information about effort and a donation link can also be found at www cman4ukraine org

Donations to NH Relief for Ukraine can be made online via the fund’s fiscal agent Granite United Way at www.graniteuw.org or by texting NH4UKRAINE to 41444.

The Wage & Hour Division (WHD) offers two youth employment protections webinars for employers, parents, educators, and workers in Northern New England:

States are reporting increased numbers of child labor permit applications for 14 15 year old workers than in recent years. Many employers are hiring teenagers for the first time, which means child labor rules and regulations are new territory to explore and learn.

At the Wage and Hour Division (WHD), we enforce the Fair Labor Standards Act (FLSA), which includes the rules and regulations that govern the employment of workers under the age of 18.

Time 10:00AM-11:00AM Thursday 29Sep Time Thursday 06Oct Free Attendance: Register Here Free Attendance: Register Here 2:00PM-3:00PM YOUTHEMPLOYMENT PROTECTION WEBINAR

We are committed to protecting the youngest members of our workforce and enforcing child labor law to the fullest extent. We know that the most effective prevention is education.

Child Labor Compliance Assistance

SEASON OF CHANGE: FEDERAL APPEALS

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Federal courts and administrative executive agencies have recently made significant developments in the area of employment law In a matter of first impression by any Federal appeals court, the Fourth Circuit recently held that gender dysphoria constitutes a disability subject to the Americans with Disabilities Act (“ADA”) The National Labor Relations Board (“NLRB”) also recently proposed a new joint employer test If finalized, the rule would relax the standard of joint employment in the context of union organizing and labor relations. Here are the details:

Do transgender people have a disability? That depends In a Fourth Circuit decision, Williams v Kincaid, a transgender woman with gender dysphoria, sued multiple Fairfax County officials for violations of the ADA during her incarceration She claimed that prison officials discriminated against her on the basis of disability when they harassed her, refused to use her desired pronouns, rehoused her with the men after originally being placed with the women, denied her request for a female deputy to perform searches, and delayed medical treatment (continued hormone therapy) during her incarceration. The lower court dismissed her claim holding that gender dysphoria was not a protected disability under the ADA. On appeal, the Fourth Circuit reversed

DISABILITY AND NLRB PROPOSES NEW JOINT EMPLOYER RULE

By Christopher T. Vrountas, Esquire and Allison C. Ayer, Esquire, Vrountas, Ayer & Chandler, P.C.

Gender Dysphoria is a Covered Disability

The crux of the fight on appeal was the proper interpretation of a section of the ADA which excludes from the definition of “disability” and the statute’s protections “gender identity disorders not resulting from physical behaviors.” Williams argued that 1) gender dysphoria was not a gender identity disorder, and 2) even if it was, it results from a physical basis which brings it outside the scope of the gender identity exclusion. The Court agreed with Williams on both points

COURT RECOGNIZES GENDER DYSPHORIA AS

Proposed New Joint Employee Rule

All of this confirmed for the Fourth Circuit that “ a transgender person ’ s medical needs are just as deserving of treatment and protection as anyone else’s ” The Court accordingly concluded that gender dysphoria was a disability protected by the ADA.

On the second point, the Court reasoned that even if gender dysphoria was a gender identity disorder (which is not), it is one that results from a physical impairment for which Congress explicitly gave safe harbor and provided protections. The Court noted that it must defer to federal agencies’ reasonable interpretation of ambiguous terms in the statutes they are responsible for enforcing. And the Equal Employment Opportunity Commission (which enforces the ADA) interprets the term “physical impairment” broadly to include “ any psychological disorder of condition…. affecting one or more body systems, such as neurological .and endocrine.” The court found that Williams had satisfied this standard She alleged her gender dysphoria experienced “emotional, psychological, and physical distress” and furthermore required physical treatment such as hormone therapy to treat the dysphoria To this Court, this was sufficient to find that Williams’s gender dysphoria was a gender identity disorder resulting from a physical impairment, and that it was therefore a disability covered by the ADA

On the first, the Court explained that a diagnosis of gender identity disorder is distinctly different from gender dysphoria While gender identity concerns an incongruity between one ’ s assigned sex and gender identity, the latter focuses on the clinically significant distress (e g , anxiety, depression, self mutilation, suicidal ideation, suicide, or other self harm) of some people who experience incongruity between their assigned sex and gender identity The Court also noted a shift in the medical understanding of these issues When the ADA was passed, the diagnosis of gender dysphoria did not even exist Meanwhile, in the years since the ADA was passed, the medical community has rejected the gender identity disorder as a proper medical diagnosis of any condition Further to this point, the Court said that relevant manuals of mental health disorders have removed gender identity disorder from the list of applicable medical diagnoses, and added gender dysphoria to the list The Court reasoned that these developments in medical understanding showed that, while cross gender identity is not a disability, the clinically significant stress that may result from cross gender identity can indeed be understood as a disability. For these reasons, the Court concluded that gender dysphoria was not a “gender identity disorder” excluded from the ADA’s protections.

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As a final rational for its decision, the Court noted that to conclude that the ADA did not protect gender dysphoria would implicate “ a serious constitutional question ” In essence, the Court said that excluding from the protections of the ADA both “gender identity disorders” and gender dysphoria “would discriminate against transgender people as a class” that would violate the 14th Amendment’s equal protection clause As the Court put it, the only reason for the ADA’s exclusion of “gender identity disorders” was “‘ a bare desire to harm a politically unpopular group [, which] cannot constitute a legitimate governmental interest” that complies with the Constitution

When do companies become “joint employers” for the same employee? The NLRB has proposed to change the rule that answers that question. In another new employment law development, the NLRB announced just after Labor Day, its proposed new rule for the joint employer test to determine whether two employers are “joint employers” of certain employees within the meaning of the National Labor Relations Act.

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To the extent the final rule transforms businesses into joint employers of employees they share with another company, those businesses should consider if it makes sense to alter arrangements with related entities to avoid this fate, or if not, what changes they may need to make to ensure they are complying with the law

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With regard to the proposed joint employer rule by the NLRB, employers with an interest on the issue should submit comments, pro or con , before the November 7, 2022 deadline Otherwise, businesses who share employees with other entities (for example, temp agencies or employee leasing companies) should monitor for the final rule and assess thereafter appropriate plans regarding joint employees.

So, what does all of this mean for employers?

According to the NRLB, the proposed rule change is intended to ground the joint employer standard in common law agency principles In essence, two or more employers would be considered joint employers of one or more employees if they “share or codetermine those matters governing employees’ essential terms and conditions of employment,” such as wages, benefits and other compensation, work and scheduling, hiring and discharge, discipline, workplace health and safety, supervision, assignment, and work rules. The proposed rule further provides that joint employer status can be proven in court not only with direct evidence of control and agency, but also “with evidence of indirect and reserved forms of control, so long as those forms of control bear on employees’ essential terms and conditions of employment ”If this new rule becomes final, it would replace the joint employer test that took effect just over 2 years ago on April 27, 2020

As far as the Williams decision about gender dysphoria, the ruling is only binding on employers doing business in Fourth circuit states (i.e., Maryland, North Carolina, South Carolina, Virginia, and West Virginia). That said, it would not be surprising if other Federal courts, including those in New England, soon follow suit Employers are therefore well advised to review their policies and procedures now in anticipation of this development and ensure that they prohibit discrimination, harassment, and retaliation on the basis of gender dysphoria

Employers should also consider revising their policies and procedures to establish a mechanism for responding to requests for accommodations of transgender and LBGTQ+ employees with gender dysphoria or otherwise Such requests may include, for example, gender neutral bathroom, transgender restroom usage, and leaves of absence for medical treatment. Training in this regard will also be critical. Finally, if nothing else, the Williams decision is worth reading if only to help employers better understand and respond to the workplace issues associated with the efforts to recognize LGBTQ+ rights.

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M S Walker

Best Western Executive Court Inn

Sheehan Phinney Bass & Green

MSI Utilities Inc

Dairy Queen Grill & Chill Glen Hanover Street Chop House

The Beach Plum Epping and North Hampton

Lui Lui of Nashua

Black Trumpet Bistro