Business going to the dogs?

By: Michael S. Mitchell, Fisher & Phillips

Imagine a big night at your restaurant:  the place is packed with guests, all enjoying themselves.  A diner shows up with an unexpected companion – a dog.  You’re concerned about health regulations and the effect on other patrons.  Politely, but firmly, you tell the guest she cannot enter with the dog.  Either it stays outside or she does.  Any problem?  Yes.  You’ve just politely, but firmly, violated the Americans with Disabilities Act. 

There has been a lot of coverage recently about the changes in the ADA, but this particular area has been around for a long time.  Unfortunately many restaurateurs still seem to get it wrong.

Like Restaurants, These Animals Are in the Service Business

The ADA requires reasonable modification of policies and practices to accommodate disabled individuals with service animals.  Most people think of dogs when they think of service animals, but dogs aren’t all you might conceivably see. Indeed, monkeys, pigs, and miniature horses now may serve this role (though it’s highly unlikely any disabled patron would show up with a miniature horse!). 

Moreover, animals are now trained to provide far more varied services such as hearing or signaling (alerting deaf individuals to sounds); mobility assistance (pulling wheelchairs, picking up things that are dropped, providing stability for walking); and seizure alert/response (alerting owners to impending epileptic seizures or to sounds).

The Department of Justice defines “service animal” as “any guide dog, signal dog, or other animal individually trained to do work or perform tasks for the benefit of an individual with a disability, including, but not limited to, guiding individuals with impaired vision, alerting individuals with impaired hearing to intruders or sounds, providing minimal protection or rescue work, pulling a wheelchair or fetching dropped items.” 

The DOJ regulations do not require service animals to have a state certification or permit and restaurants may not require proof of certification as a condition of the animal entering.  Nor may restaurants exclude a guest’s service animal because the animal does not meet a state law definition of service animal.  You may, of course, ask the guests whether their disability requires the animal if you cannot visually determine whether or not the animal is a service animal.  Generally speaking, service animals are recognizable by the special harness or collar they wear.

Emotional Rescue

Further complicating the reasonable modification request is the existence of “emotional support animals.”  For example, a patron with a mental disability may ask the restaurant to permit his “emotional support animal.” Unlike service animals, emotional support animals do not necessarily have “task specific training” and are therefore different and treated differently under the ADA. 

That means you may deny guests’ requests for an emotional support animal to stay with them unless a patron with a mental disability can show that the animal has been trained to perform specific tasks to ameliorate the effects of the disability.  In that situation you will be required to grant the request.  So someone who requests that Fluffy or Fido sit at the table with them because “it makes me feel more comfortable” can be turned down. But don’t be too quick to press your rights, even in this type of situation.  Restaurants have gotten bad publicity at times when the patron was an ex-serviceperson suffering from post-traumatic stress disorder, and the animal was a legitimate emotional-support animal.

Additional Rules

Once the service animal is in the restaurant, you may not charge patrons an extra fee because of the animal.  Nor may you require disabled patrons with service animals to use service elevators if your establishment is multi-story.

Of course, restaurants can impose requirements that a service animal not pose a direct threat to the safety or health of others.  But even if a service animal is a direct threat, you should not automatically exclude the disabled patron.  Rather, you should offer the guest the opportunity to dine without a service animal on the premises.  But such situations should be rare, since service animals are unlikely to create safety or threat problems given their specialized training and desensitization to distractions.  The more likely problem is keeping other diners and staff from treating the animal like a pet when the animal is “working.”

Restaurants are not required to grant the accommodation request under the ADA if doing so would significantly or fundamentally alter the nature of the dining experience.  Again, this is unlikely to occur with a service animal, but if it does (for example, if a guide dog barks or is otherwise disruptive) you may exclude the animal – again you should offer the option to the patron of continuing without the service animal).  Finally, the ADA does not require you to permit an animal-in-training to stay in the restaurant nor to permit non-disabled patrons who request to have animals they are training for the disabled to stay with them.

An Animal Checklist

Whether a patron’s request for a service animal is a reasonable modification of your rules requires some thought. In making your decision the restaurant should evaluate the following issues:

• Is the patron disabled? While certain impairments are easily understood to limit major life activities – paralysis, blindness, deafness – others, such as chronic fatigue syndrome or depression, are not.
• If there is a disability, is the animal a service animal?  If you cannot determine whether it is, you may ask what tasks the animal has been trained to do.
• Does the animal ameliorate the problems the patron’s disability causes?  Keep in mind no federal standards exist with respect to answering this question, which would most likely be answered by the patron’s physician in the event of litigation.
• Will the animal’s presence create a threat to the health and safety of the other patrons?
• Will the presence of the animal fundamentally alter the nature of the restaurant’s service?

Accommodating a disabled patron is, of course, the right thing to do. It is also the “legal thing” to do, so be sure you have a policy in place covering service animals, and train your staff so that they are aware of and comply with Title III of the ADA.

Mike Mitchell is a partner with the law firm of Fisher & Phillips LLP, and is labor counsel to the Louisiana Restaurant Association.  

The real story about workers' comp costs

This article ran in the Louisiana Restaurant Association Fall 2013 of The Source, within the A La Carte magazine. The Source is a publication designed to further educate LRA SIF participants and prospective participants about workers' compensation.

While assisting members of the Louisiana Restaurant Association Self Insurer’s Fund for Workers’ Compensation (LRA SIF) to improve their safety and health programs, one of the most common problems seen is employers who attempt to solve their safety and health problems by strictly focusing on Occupational Safety and Health Administration (OSHA) codes and standards and ignoring sound loss prevention and control measures.

One example of this was a 65-employee facility that was recently visited by OSHA and given a $7,000 fine. They were in the process of rewriting their company’s Safety Policy and Procedures at a cost of more than $10,000.  When questioned about how their claims had also affected their workers’ compensation premiums, they had no idea. A brief investigation revealed that their workers’ compensation premiums had risen to more than $20,000 over the last several years! And because of the excessive losses over the last two years, their premium could rise an additional $10,000. 

The likelihood of OSHA visiting your facility is slim unless you have a fatality or an employee complaint. However, your workers’ compensation costs accrue every year like clockwork. These costs affect your business’ ability to make a profit.  The owner of the company mentioned above probably drives by competitors on his way to work every day that are paying well over 50 percent less for their workers’ compensation coverage. Most businesses cannot afford to pay 50 percent more in workers’ compensation premiums.  That is why your injury and illness prevention efforts should legitimately be an integral part of your company’s management plan and not just an ancillary OSHA compliance program.

Direct and Indirect Costs

All employers are familiar with the direct costs of workers’ compensation. Direct costs include medical bills, pharmaceutical bills, lost wages, mileage reimbursement, etc. However, more important than the direct costs of workers’ compensation claims are the indirect costs.  The reason that the indirect costs are more important is that statistically they are 5 to 10 times more costly than the direct costs! The reason they are more costly is because you are not insured against those losses. All indirect costs of claims are paid directly by you—the employer. 

Some examples of indirect costs include:

• Training replacement workers
• Reduced productivity because of the breakup of a crew
• Manager’s time spent dealing with the claim
• Lost production/productivity due to work stoppage
• Repair or replacement of damaged equipment
• Overtime of additional workers

Although this list includes some of the major indirect costs associated with claims, these are by no means all of the indirect costs that may affect an organization. The list of the indirect costs can be quite lengthy.

How Does Your Business Compare?

Is good enough really good enough? What steps are you taking to ensure that your workers’ compensation premiums are as low as possible? If you compare your business to other businesses and feel that your business is just about average, you should ask yourself if average is really good enough? If your competition is able to reduce their workers’ compensation direct and indirect cost then they ultimately will be able to produce a product for less. Workers’ compensation claims should be thought of as losses to a business like any other losses and controlling them can be managed very much like many other parts of your business. Simply, safety and loss control needs to become an integral part of your business. 

However, many business owners say that controlling their losses or putting safety first is not their main business. Their number one priority is producing a good quality product at a fair price. In order to do that however, a business must operate efficiently with as few interruptions as possible. Injuries and illnesses are interruptions that affect a business in similar ways to breakage of equipment. They disrupt the operations and cause a loss of productivity and efficiency.

What Can You Do?   

• Determine your workers’ compensation costs—both the direct and indirect costs (multiply your direct costs by 5-10 percent).
• Evaluate your operation and determine what types of safety and loss control programs should be in place and determine the costs of implementation.
• Designate a Safety Coordinator. This person should have enough time to devote to safety and loss control and not simply wear several hats within the operation.
• Implement a safety and workers’ compensation loss control program that includes employee participation.
• Regularly monitor and evaluate your program and make changes as necessary.
• Contact the loss control department of your workers’ compensation carrier for assistance in developing your safety and loss control programs.

If you are a member of the LRA SIF and you would like additional information on developing your workers’ compensation loss control programs please contact LRA SIF VP of Loss Prevention Victor Balbuena, vbalbuena@lra.org or (504) 454-2277.

The LRA SIF recently reduced its rates for the third time in three years. If you are interested in receiving a quote for  your workers' compensation needs, please email lrasifquotes@lra.org.

Restaurateurs, chefs invited to learn more about the Share the Gulf coalition

This article ran in the Louisiana Restaurant Association Fall 2013 A La Carte magazine.

As a member organization of the recently created Share the Gulf coalition, the Louisiana Restaurant Association is advocating for maintaining the current allocation of red snapper (51 percent commercial and 49 percent recreational) for current and any future increase in total catch allowed. We invite you to visit the Share the Gulf coalition website to learn more.

The Louisiana restaurant industry depends on fair and sustainably managed fisheries in the Gulf of Mexico. This means equal consideration for restaurant and consumers as well as recreational fishermen. We recognize that recreational anglers currently face harsh rules on some favorites like red snapper, grouper and others. At the same time, fishermen, seafood providers, restaurant owners and chefs with Share the Gulf are asking: How does taking fish from consumers help solve the problems facing anglers?

The current red snapper catches have seen a 70 percent increase in the total catch allowed in just the past five years. Commercial fishermen, seafood businesses and the consumer are reaping benefits because the Gulf of Mexico Fishery Management Council has considered stock assessments, NOAA data and public input in executing a management plan that has helped promote fish population recovery.

Unfortunately, angling seasons continue to shrink, regardless of the increased total catch, because the underlying recreational management plan remains broken. Anglers are understandably angry, but assigning them more fish (reallocation) won’t help. Instead, it hurts more people and our industry’s access to the highly desirable fish our restaurants love to offer their guests.

Many of us enjoy recreational fishing with our families and friends, and we want our families to experience catching their own dinner. We also know that many of our guests enjoy recreational fishing.

In our view, we should encourage an engaged discussion including recreational fishing, harvesting, distributors and restaurant interests.  Let’s talk about what everyone’s goals are and how we can achieve them together. Let’s stand up together and ask the Gulf of Mexico Fishery Management Council to focus their attention on recreational management plans that will actually extend seasons over the long-term, improve data collection and reporting and enhance sustainability.

The commercial management through the Gulf Council is working. We hope that similar success can lead to addressing the concerns and fishery management challenges for recreational interests as well.

Famous for Hurricanes, Pat O'Brien's celebrates 80th Anniversary with block party

As Prohibition was ending, Pat O’Brien opened the doors to his neighborhood watering hole on Saint Peter Street on December 3, 1933.   A lot has changed in the last 80 years, but they still know how to throw a party on St. Peter Street in the Quarter.   Consider this your “Save the Date” for a block party on December 3, 2013 with live music by the local favorite band The Bucktown Allstars. 

The green jacket-clad bartenders will be serving up the famous Hurricanes for half-price and a special commemorative Hurricane glass will be on sale with proceeds going to a to be named local charity.   As always, the fountain will be burning strong and the piano players will be playing your napkin-scribbled requests.  Not many 80 year olds can throw a party like this, so mark your calendar now.

Shelly Oechsner Waguespack, President and 3^rd-generation owner of Pat O’Brien’s, had this to say about the party:  “Our first anniversary party was our 60^th and we’ve been doing this every 5 years since.  We felt strongly about giving back to our community that has supported us through the years.  We have the best customers in the world!   We are grateful that we can continue this incredible tradition of celebrating Pat O'Brien's, our customers and our incredible employees!”

For more information on this event visit www.patobriens.com or www.facebook.com/patobriens.

ProStart students take first prize in Men Who Cook quick-fire challenge

Salmen High School ProStart students win first prize in  Men Who Cook
quick-fire challenge with their Pumpkin Supreme Ice Cream Sundae.

ProStart students from St. Tammany Parish competed head-to-head October 26, 2013 at the first Men Who Cook quick-fire challenge to raise money for Children’s Advocacy Center—Hope House.

Competing alongside celebrity chefs including La. Commissioner of Agriculture Mike Strain and numerous others, ProStart teams competed in the ice cream sundae cooking challenge. Competitors were asked to prepare a crunchy topping, a sauce and a whipped topping. Salmen High School’s ProStart team, led by Instructor Allison Armand took home first prize with their Pumpkin Supreme Ice Cream Sundae.

ProStart is a dynamic, two-year, restaurant management and culinary arts curriculum offered in nearly 50 high schools across Louisiana. ProStart is administered by the Louisiana Restaurant Association Education Foundation.

LRA Northshore Chapter wants you to Serve It Up for Education!

The Louisiana Restaurant Association Northshore Chapter will host its first-ever “Serve It Up for Education” Co-Ed Volleyball Tournament, Saturday, Nov. 16 at 11 a.m. at the new Digs Volleyball Complex, 700 Windward Drive in Covington.  Digs is the premier spot North of the Lake for beach volleyball leagues, tournaments and instruction. This is also the first event to be held at the new Complex.

The “Serve It Up for Education” tournament will have two divisions—Intermediate and Open. The Intermediate Division winner will receive prizes, while the Open Division winner will receive a $1,500 cash prize. Teams of four are $400 and teams must have at least one female player. There’s a $1500 cash prize for the Open Division winner. The proceeds benefit the LRA Education Foundation.

And no LRA event would be complete without a lineup of delicious cuisine from our generous members! You’ll enjoy tasty eats from Acme, Raisin’ Canes, Martin’s Seafood, Benedict’s, Zea and Chimes and libations from Crescent Crown, Southern Eagle, Bayou Rum and Coca-Cola products.

Individual tickets to the tournament are $35 per person and includes food and beverage and must be purchased at the door. 

To register your team, please visit www.digsvb.net. If you have any questions, the contact for the event is Jodi Williams at jwilliams@lra.org or 504-454-2277.

Goldman Sachs 10,000 Small Businesses accepting applications for 2014 classes

Updated programming offered for early-stage business owners

 

Delgado Community College chancellor Dr. Monty Sullivan announced today that applications are now being accepted for all cohorts of the Goldman Sachs 10,000 Small Businesses program scheduled for 2014. The three cohorts (or classes) are scheduled to begin in February, June and September, 2014. The program, aimed at helping existing companies grow revenues and create jobs, is funded through a grant to Delgado Community College through the Goldman Sach Foundation and is no-cost to selected participants.

 

As part of the 2014 schedule, Delgado 10,000 Small Businesses will offer classes designed specifically for business owners who have successfully launched scalable businesses, but who do not yet meet the criteria for the traditional 10,000 Small Businesses program. This session begins in February.
 

Louisiana Restaurant Association member Phil de Gruy, owner of Phil's Grill in Metairie, knew that participating in the Goldman Sachs 10,000 Small Businesses program would be an investment in his business's future. He was right! The knowledge de Gruy gained from the intensive business program has helped him maximize his restaurant's position in the market, manage his finances for greater profitability, and develop a more accountable and customer-focused workforce. 

 

 

Last year Delgado Community College and the Goldman Sachs Foundation partnered with The Idea Village to pilot a program geared toward early-stage businesses in the Greater New Orleans area.

 

“Based on the success of this class and a noticeable demand from the local entrepreneurial community, a second cohort for early-stage businesses will be launched in February 2014,” said Carla Coury, 10,000 Small Businesses executive director.

 

Small business owners who demonstrate a commitment to growing their businesses and have been in operation for at least one year, generate revenues in excess of $25,000, and employ at least one person in addition to the owner are encouraged to apply to the early-stage cohort that begins in February.

 

"Being able to identify areas I needed to work on and take steps to put my business on track for growth was an invaluable product of my participation in the program," said de Gruy. "I learned the difference between running a restaurant and running a business."

 

Small business owners who have been in business for two or more years, earn annual revenues in excess of $150,000, and employ four or more employees (including the owner) should apply for the traditional cohorts scheduled to begin in June and September 2014.
 

Since launching the program in 2011, Delgado Community College has served 174 small business owners in the New Orleans/Gulf South region.

 

 

With education programs at community colleges in 10 cities and capital-only programs in 6 states nationwide, the program boasts more than 1700 alumni and a 99 percent graduation rate. Approximately 63 percent of graduates report that they have increased revenues just six months after graduating and 47 percent have created new jobs in the same period. Over 75 percent of all graduates report doing business with one another.

 

 

Delgado Community College works with community-based partners and national business organizations to encourage small businesses to apply for the program and to provide business advice, technical assistance, and networking to program participants. Local partners include Hope Enterprise Corporation, Greater New Orleans Inc., The Idea Village, the Louisiana Small Business Development Center and area chambers of commerce.
 

Participation is free to business owners who are accepted through a competitive application process. 

To download an application or learn more about the Goldman Sachs 10,000 Small Businesses program in New Orleans, visit www.dcc.edu/10ksb or call 504-671-5555.