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 A N D R E S T A U R A N T A S S O C I A T I O N
Issue No. 03
• March 2021 • Cover Photo: Tino's Kitchen + Bar
One Year into COVID-19
Legal Update
We Like Our Tips
A letter from NHLRA President and CEO on the anniversary.
DOL delays tip credit and independent contractor rules.
An op-ed from a Copper Door employee on the tip credit.
page 5
page 9
page 17
Inside YOUR GUIDE TO ISSUE NO.3
4
Members Around Town
The latest industry news
5
Letter from the President
NHLRA President and CEO Mike Somers reflects on the anniversary of the shutdown.
9
Legal Update
DOL delays tip credit and independent contractor rules
Stylish new shirts at Dos Amigos.
14 NH Promise Makes Waves
Governor Sununu stopped by 900 Degrees for pizza.
An update on the free certification program
17 We Like Our Tips
An op-ed from a restaurant employee on protecting the tip credit
19 Marketing
The Jewish Film Festival seek restaurant partners
Opportunity
Cover Photo: Tino's Kitchen + Bar
Feeling festive at Atkinson Resort.
www.nhlra.com | 2
2020 Chair of the Board
Gail Batstone Owl's Nest Resort & Golf Club 2020 VIce Chair of Lodging
Molly Rice-Norby Woodstock Inn Station & Brewery 2020 VIce Chair of Restaurants
John Dunn Michael Timothy's Dining Group NHLRA President and CEO
Mike Somers NHLRA Director of Education and Workforce Development
Amie Pariseau NHLRA Membership Manager and Director of Workers' Compensation Trust
Samantha MacDonald NHLRA Social Media and Marketing Manager
Pamela Baker NHLRA Administration Assistant
Aubrey Paquette
www.nhlra.com | 3
NHLRA
MEMBERS AROUND TOWN HOSPITALITY AND TOURISM MEETING WITH SEN. SHAHEEN
GOV. SUNUNU RALLIES FOR NH RESTAURANTS
G ov. Sununu posted in support of Rally for NH Restaurants this month, reminding everyone to eat out, take out, and help out. He also enjoyed Rally logo cookies from
S en. Shaheen hosted an
the
bakery
of
NHLRA
member Red Blazer Restaurant.
online discussion with leaders
TOURNAMENT OF CHAMPIONS 2
from
Chef Bobby Marcotte competed
the
restaurant
and
tourism industries earlier this
in the action-packed premiere
month.
episode
NHLRA
President
and
programs,
federal the
Network
international
workers,
looks
LABELLE WINERY ANNOUNCES NEW CULINARY DIRECTOR
L aBelle Winery recently tapped
forward
acclaimed chef
Peter Agostinelli
working with both Senators
as their new culinary director. A
Shaheen
a
celebrated leader in the industry,
wage solution that will support
Chef Agostinelli brings more than
the recovery of our operators
20 years of experience to his new
and our workforce.
role.
and
Hassan
on
and
vote to protect the tip wage.
NHLRA
streaming
of
appreciation for her recent
The
and
Discovery +.
relief
shortage
of
Wild Card Play-In" on the Food
the meeting, which focused on new
"Tournament
Champions 2" followed by “East
CEO
Mike Somers participated in
the
of
on
www.nhlra.com | 4
NHLRA UPDATE
Letter from the President Dear NHLRA community, This week marks the one-year anniversary of the COVID-19 shutdown in New Hampshire. Like so many others, I find myself reflecting on what we’ve lost, what we’ve learned, and what remains in the period ahead. For all of us in the hospitality community, the days were long and dark for much of last year. And yet, in the face of our industry’s greatest crisis, I witnessed the remarkable resiliency of New Hampshire’s hospitality operators and their staff. I know how difficult it was for you to adapt to new procedures and navigate an ever-changing landscape of restrictions, and I’m grateful for the trust you put in our association to help lead you through them. I, along with so many others, remain inspired by your commitment to serve your communities.
Somers showing dividers at a press conference
In the face of these unprecedented challenges, I’m also incredibly proud of what we accomplished as an association. These achievements include: Serving on the Governor’s Economic Reopening Task Force as a powerful advocate for the needs of the hospitality industry and playing a critical role in writing the state’s reopening guidelines. Acting as a central hub of information, providing personalized guidance, and communicating the latest updates through regular email blasts. Distributing over $200,000 in relief grants to hospitality workers. Collaborating with the National Restaurant Association to act as one voice on the federal level, accomplishing a Restaurant Revitalization Fund, securing PPP loans and closing the loophole to prevent surprise federal tax bills, and expanding the Employee Retention Tax Credits to support employment. Successfully lobbying for beer and wine delivery and takeout. Launching Rally for NH Restaurants, in partnership with Visit NH, to drive traffic through your doors. Together with the educators at the Community College System of NH, creating the free NH Promise certification course to increase consumer confidence. Strengthening our relationships with partners in the state, including NHSBDC, FEMA, BFA, and many more. Continuing to build exclusive cost-savings programs for our members with the launch of the Small Group Health Option and a Reopening Directory.
www.nhlra.com | 5
Where do we go from here? While we made extraordinary progress this year, our work continues, and our mission has never been more important. The NHLRA is committed to leading and driving the following changes during this crucial recovery period: Advocating to lift the remaining restrictions. Workforce development, recruiting back talent lost during the pandemic, and advocating to lift the cap on the J-1 and H2B visa programs. Protecting the tip credit and working on a wage solution that will support the recovery of our operators and our workforce. I’m confident that we’ll achieve these goals and more. Thanks to your hard work and support, the association is well-positioned to continue helping our 800+ members weather the challenges that remain ahead. I’m also thankful for the hard work of the team here at the NHLRA and its Board of Directors, who work tirelessly on your behalf. While the breadth of what we lost this year is impossible to comprehend, what remains is clear: the strength of our industry, our ability to unite, and our unwavering passion to serve. Sincerely, Mike Somers
www.nhlra.com | 6
www.nhlra.com | 7
This year's Accelerate Women Leaders in Travel, a leadership retreat for New England women leaders in the hospitality and tourism industries, will be held virtually on April 27 and 28th, 2021. Participants will receive a professional development experience focused on relationships, knowledge, and leadership with their owner, director, and management-level peers.
www.womenleadersintravel.com www.nhlra.com | 8
LEGAL UPDATE
DOL Delays Tip Credit and Independent Contractor Rules By Christopher T. Vrountas, Esq. and Allison C. Ayer, Esquire, Vrountas, Ayer & Chandler, P.C.
The U.S. Department of Labor (“DOL”) recently
Tip Credit Regulations
announced the delay of the effective date of a pair of important regulations published at the
The Federal tip credit regulations propounded
end
These
at the end of 2020 contain three essential
regulations were propounded in December
elements. Here are the essential elements of
2020, and early January 2021, respectively, right
the regulations as they are currently written:
of
the
Trump
administration.
before President Biden’s inauguration. Just when
First,
the pandemic seemed to be coming under
regulations prohibit employers from keeping
control and employers thought they might
tips received by their employees, regardless of
have more certainty about the future, the
whether the employer takes a tip credit under
DOL’s action suggests the potential for more
the Fair Labor Standards Act.
the
December
2020
tip
credit
changes in the near future. www.nhlra.com | 9
Second, they also eliminate the longstanding 20% rule (prohibiting an employer from taking a tip credit toward the minimum wage if the employee spends more than 20% of time on non-tipped duties), and replace it with a rule that an employer may take a tip credit
on
ANY
AMOUNT
OF
TIME
an
employee in a tipped occupation performs non-tipped duties, SO LONG AS they are related
to
and
performed
contemporaneously with the tipped duties, and they are performed for a reasonable time immediately before or after performing the tipped duties. The regulations also clarified that a non-tipped duty shall be construed as related
to
a
tip-producing
duty
(and
therefore payable at the tip-credit wage) if it
Independent Contractor Regulations
is either listed in the dual jobs regulations propounded by the Department of Labor OR
The DOL has also delayed the effective date of
if it is listed as a task of a tip-producing
the
occupation in the Occupational Information
regulations.
Network (“O*NET”). Other duties must be paid
propounded on January 7, 2021, and they
at the full minimum wage unless the time
address when a worker is an employee who
spent in the task is de minimis.
has
revised
to
independent These
be
paid
in
contractor
regulations
accordance
were
with
the
minimum and overtime wage requirements of Third, the regulations also allow employers to
the FLSA, or an independent contractor who
include in tip pools, employees who do not
does not. As presently revised, here is an
customarily
overview of what these regulations provide:
receive
tips
(like
cooks
and
dishwashers) only if none of the employees are paid the lower tip-credit wage, i.e., they
First,
are all paid at least full minimum wage.
regulations clarified that the actual practice of
Back-of-the-house
the parties, rather than any contract language
employees
CANNOT
the
revised
independent
contractor
participate in a tip pool with service workers
or
who are paid the lower, tip credit hourly
whether
wage.
contractor.
These tip credit regulations were scheduled
Second, the revised regulations also affirm
to become effective on March 1, 2021. The
that the “economic reality test” (i.e., is the
DOL has now delayed the effective date until
worker
April
Biden
from the employer) determines when an
Administration may change in the meantime
individual is an independent contractor or an
remains to be seen.
employee, and identifies the “core” factors
30,
2021.
What
the
theoretical a
possibility,
worker
actually
is
shall an
economically
determine
independent
independent
www.nhlra.com | 10
relevant to the test: 1) the nature and degree of control over the individual’s work; 2) the worker’s opportunity for profit or loss and other guiding factors; 3) the amount of skill required for the work; 4) the duration/degree of permanence of the working relationship between
employer
and
worker;
and
5)
whether the work is part of an integrated unit of production. The
revised
regulations
independent
were
contractor
scheduled
to
become
effective on March 8, 2021. The DOL delayed the effective date until May 7, 2021. The stated reason for the delay was to “give the [DOL] additional opportunity to review and consider the Independent Contractor Rule.”
“Certainty is generally illusory . . .” The DOL’s activities in this regard suggest at least the possibility that the DOL may have further
revisions
to
the
tip
credit
and
independent contractor rules. Employers are therefore well-advised to delay making any major
changes
to
their
policies
and
procedures in these areas. It is also a good idea for employers to monitor for updates to ensure that they are aware of the latest developments
regarding
tip
credits,
minimum wage/overtime issues, and other employment laws. Know and comply with your applicable state wage and hour laws too, as the federal regulations do not affect those obligations. In short, keep watch for developments, as Oliver Wendell Holmes, Jr. noted, “certainty is generally illusory, and repose is not the destiny of humankind.”
250 Commercial Street, Suite 4004 Manchester, NH 03101
www.nhlra.com | 11
www.nhlra.com | 12
NHLRA NEWS
NH Promise Makes Waves
Larissa Baia, President of Lakes Region Community College.
This month, the NHLRA joined the educators of the Community College System of NH and The Common Man at an event to promote the NH Promise certification program. The Common Man's family of restaurants helped pave the way for this program by being one of the first restaurants to participate. More than 30% of all management and servers in the Common Man family have completed the course requirements! To take advantage of this free, two-hour course for yourself or your team, register here.
Watch the WMUR segment above to learn more. www.nhlra.com | 14
www.nhlra.com | 15
www.nhlra.com | 16
NHLRA MEMBER OP-ED
We Like Our Tips By Patrick Foy, Copper Door Restaurant In the foodservice industry, we’re usually in a hurry. Despite the calm in the dining room, there’s an excited energy in the kitchen. It doesn’t leave much time for chit chat but my coworkers and I try to find moments to catch up
when
we
can.
Lately,
one
topic
of
conversation has been front and center — Congress’ proposed elimination of the tip
We also understand that our earnings are
credit and how that will impact our income.
protected under the tip credit. If a tipped employee’s hourly rate plus tips doesn’t
The COVID-19 pandemic has been tough on
meet the standard minimum wage, their
everyone, but the restaurant industry has
employer is legally obligated to make up the
been decimated. One-in-six restaurants have
difference so that we’re never paid less than
shuttered and more than two million workers
minimum wage. This safety net is rarely used
have
and
because the U.S. has a pro-tipping culture.
mentally
With our hourly wage plus tips, most servers
lost
jobs.
uncertainty
is
The
financial
emotionally
strain
and
crippling.
make between $19 and $25 an hour, far
At Copper Door Restaurant, we’re like a family. Management is doing all it can to keep the
employees
utilizing
PPP
afloat: loans,
adjusting making
hours,
sacrifices
themselves to ensure we have enough to get by. Those of us lucky enough to be working now have a new battle to fight. As part of the Raise the Wage Act, Congress wants to eliminate the tip credit and enact a $15 minimum wage. As tipped employees, we are fully aware that right now there is a lower minimum wage in most states and a tip credit for tipped workers like waitstaff and bartenders.
above
the
proposed
minimum
wage.
Elimination of the tip credit puts our wages at significant risk as it would inevitably lead to a drastic decrease in a tipped employees’ earning potential. Not only would elimination of the tip credit hurt the employees it’s meant to help, but it would also further devastate restaurants. Most operate on a thin 3% to 5% pre-tax profit margin. A $15 minimum wage for tipped employees would mean a triple-digit increase in tipped labor costs. Such an increase will force price increases of as much as
20%
to
consumers
and
still
require
benefit and staff cuts. .
www.nhlra.com | 17
For the remaining workers, our motivation
We are so passionate about keeping the tip
would plummet along with our tips. It’s like
credit in place that we’ve started a petition at
telling a salesperson they can no longer work
www.welikeourtips.com. It’s a grassroots effort
for commission; where is the incentive to go
to
above and beyond? Our hourly wage secures
Together,
our place as an employee of the restaurant,
Marsha
but it is the tips that help us thrive. Many
Sheehan (who all join me in this opinion) and
would reluctantly have to find a new career.
I, the Copper Door’s waitstaff, have more than
assure
tipped Kellie
employees Connolly,
Mastromariano,
are
Leeya
Tyler
heard. Rollins,
Green,
Mike
100 years of experience in the industry. Being a server or bartender is a uniquely rewarding experience and few realize how
We’ve
many of us choose this as our career path. It is
Anyone working for a great restaurant can
a balancing act that requires attention to
attest to the value of the tipped employee to
detail, the ability to multitask, and tenacity. A
the industry, and the value tips have to
knack
caring
worker lives. We feed our families, buy cars,
disposition are the most important arrows in
purchase homes, pay medical bills, afford
our quiver. Each of us have loyal “regulars”
schooling ourselves and our children, and so
that ask to be seated in our section because
much more, with tips.
for
reading
people
and
a
seen
lean
times
and
prosperous.
we have bonded with them, we know what they like, and we overcorrect any mistakes.
Any thought that you need to protect us, devalues what we have worked so hard for. It
"Being a server or bartender is a uniquely rewarding experience and few realize how many of us choose this as our career path." We treat our sections like our own small
is by our own hard work that we have succeeded and can live our American Dream. We know this is one of the hardest periods the restaurant industry has ever experienced. It’s not the time to add an unnecessary burden. On top of killing businesses, this would
actually
hurt
the
very
people
it’s
designed to help. Congress should get out of the way, let our restaurants recover, and let us focus on serving our guests to earn our own living.
businesses. To us, the restaurant floor is an interwoven
system
entrepreneurs
that
runs
of like
independent a
well-oiled
machine. We have no issue with an increased minimum wage for non-tipped workers, but
Patrick Foy works at Copper Door Restaurant in Bedford. He lives in Greenfield.
for our industry the tipping model works for guests, employees, and the restaurant. It’s a three-legged stool.
www.nhlra.com | 18
Marketing Opportunity The New Hampshire Jewish Film Festival is seeking NH restaurants that can offer a vegetarian menu to film festival attendees. The festival will promote the dinner idea through their websites, social media, and eblasts. A list of participating restaurants and their logo will also be featured on websites, ticket platforms, and Facebook. Email Pat Kalik at patkalik@comcast.net for more information.
www.nhlra.com | 19
April 2021
Upcoming ServSafe Classes 4/1
Concord
4/12
Manchester
4/13
North Conway
4/19
Nashua
4/26
Portsmouth
Get certified with us!
www.nhlra.com | 20
16 Centre Street Concord, NH 03301 | (603) 228 - 9585 | nhlra.com
