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NAME AND OCCUPATION: Richard C. Rybicki, Labor and Employment Attorney

FIRM: Rybicki and Blevans, LLP 

LOCATION: Santa Rosa, California: smack dab in the center of wine country

Art Culinaire caught up with Northern California attorney, Richard Rybicki, and asked him what he might tell professionals seeking guidance in the food and wine industries. We weren't looking for free advice, of course, but we hoped Mr. Rybicki might be able to steer employers--who work in our specific niche--in the right direction.

Mr. Rybicki has practiced law for 11 years. He traded in life in "the big city"--which also meant jettisoning the large firm--to move to the wine country and open his own practice with his partner.

Rybicki represents management in all aspects of labor and employment law. Questions about leaves of absence? Unlawful harassment and discrimination concerns? Need a recommendation for dinner? Directions to a tasting room?

Talk to Rick. Or rather, let him do your talking.

WHAT ARE SOME OF THE BIG ISSUES FACING EMPLOYERS IN THE FOOD AND WINE INDUSTRIES TODAY?

Food and wine employers face the same employment-law issues (and problems) common to all employers. Over the past several years, especially as the economy contracted, employee claims have increased in almost all areas. But there are recurrent problems faced by food and wine employers that I see over and again in my practice.

First and foremost, an employer must carry workers' compensation insurance. Workers' compensation insurance is especially important to restaurant and food service employers, whose workers are exposed not only to the expected dangers (knives, hot surfaces, wet floors), but also less-known injuries (such as repetitive-motion injuries alleged by waitstaff). Insurers often will provide free consultation and assistance--even discounts--to help operators reduce the risk of injuries, claims and higher premiums.

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Second, food and wine employers are among the most vulnerable to basic immigration violations. Unless it's a top-tier restaurant sponsoring a European sommelier's visa status, food and wine employers are unlikely to need sophisticated immigration assistance. But the nature of the industry, especially in urban areas, creates a workforce rich in recent immigrant diversity. Yet, employers' basic immigration-law duties are simple: verify employees' right to work in the first 72 hours of employment. And, even if the documents presented by an employee are false, employers need only certify that they appear "valid on their face." You don't have to be a document expert. Complete the paperwork and move on.

The third issue, by far the most difficult to manage, is wage and-hour compliance. California is a particularly tough state, with its own daily overtime, double-time and meal/rest period requirements. In my state, failure to either pay properly or even provide breaks during the day, leads to massive penalty liability over time. In any state, though, overtime and tracking time worked continue to plague industry employers. Remember: most employees are not exempt from overtime pay. An "assistant manager" who spends most of her time preparing food, serving, or pouring wine in a tasting room probably is not "exempt" under state or federal overtime laws. I see this problem with chefs almost every month, usually involving an "executive" or "head" chef who spends most of her or his time in the kitchen. Our basic rule is that if the chef's apron gets dirty, she probably is not exempt from overtime.

The remaining issues are the same for all employers: failure to maintain a policy prohibiting sexual harassment, failure to accommodate disabled employees and failure to publish an "at-will" employment policy avoiding breach of contract claims. Most of these issues can be addressed quickly by creating, distributing and initially training employees on a simple employee handbook.

Finally, employee benefits must be considered carefully. Employers are not required to provide benefits such as health insurance or 401k programs. When they do, though, they are required to manage them to the same standards as a multi-national corporation. This creates many problems, especially when an employee leaves and does not receive COBRA materials properly. I once represented a restaurant in a lawsuit that lacked any real merit except for the claim that an employee had not received a COBRA notice. If true, the employee would have received all his attorneys' fees and penalties exceeding $100 per day. If you offer benefits to your employees, make sure you understand the rules governing both the benefits and any COBRA obligations in advance.

HOW DOES REPRESENTING MANAGEMENT IN THE FOOD/WINE INDUSTRY DIFFER FROM OTHER SECTORS?

It's more interesting, of course. Eating lunch at a client's during the harvest, surrounded by vines and the ever-present Sonoma fruit flies, sure takes the edge off a tough problem. But apart from the sheer pleasure of working in the industry, my greatest single problem representing food and wine employers comes from their basic need for both skilled and unskilled labor. Food and wine production require copious hands-on work, and those hands are employees' hands. Yet employers in the food and wine industries sometimes consider themselves "different," even though they are some of the most commonly sued of all employers. After all, atmosphere and hospitality are integral to the industry. Educating management, and getting them to view themselves like any other employer, can be the most challenging part of the business.

WHAT SHOULD EMPLOYERS DO TO MINIMIZE THE LIKELIHOOD OF BEING SUED?

Learn the most basic rules that apply to all employers, and the specific rules that apply to the industry, before problems arise. Knowledge is power. Then implement at least some written policies and procedures, incorporating basic employment-law rules into the business. These policies will become part of the business and keep the employer from straying off the legal path.

DO YOU EVER WALK INTO A RESTAURANT OR TASTING ROOM AND CRINGE AT OBVIOUS VIOLATIONS THAT PUT OWNERS IN A VULNERABLE POSITION FOR A LAWSUIT?

Absolutely. Failure to display workplace postings, or maintaining old workplace postings (such as minimum-wage requirements), is a sure sign that an employer probably has fallen out of compliance somewhere. "Managers" who readily complain that they work long hours on production duties are another sign. It doesn't take long to observe labor law violations if you know what to look for!

Also, though not technically related to employment law, employers should audit their physical facilities to make sure that they comply with the Americans with Disabilities Act and similar state laws. We have seen and defended hundreds of local lawsuits brought by individuals or non-profit organizations alleging even minor technical violations (such as missing signage, improper ramp angles and restroom clearance) leading to assured penalties and attorneys' fees. Compliance with local building codes, or use of previously existing space, does not ensure that the company is in strict compliance with the ADA. Restaurants and tasting rooms are prime targets of these suits, which often are filed by the dozens on a single day.

WHAT WOULD YOU TELL A PERSON JUST STARTING HIS OR HER OWN RESTAURANT?

In addition to the million other things to think about? Every restaurant and food service operator knows that their industry is one of the most heavily regulated. Building, health and tax codes are challenging enough. Worse, they often are accompanied by frequent inspections and citations that can threaten the existence of a new (or even an established) business. For this reason, culinary and restaurant management programs stress hygiene and basic business skills, even before a student steps into the kitchen.

Many new owners don't realize that labor and employment laws are just as complicated as these other regulatory areas. Unlike hygiene and basic business skills, few schools--and few business attorneys or consultants--offer adequate advice on employment. A new restaurateur struggles just to find all the employees he or she needs to keep the doors open at night, and then contends with the industry's unusually high turnover rate. The pressure to get people to work, schedule them, set up a payroll system, and manage their performance can be overwhelming.

SO WHAT CAN AN OWNER DO TO MAKE LIFE EASIER?

My advice is simple: become familiar with basic employment-law principles immediately. Before opening a restaurant, during the permit and planning stages, a new owner should consult the state's local agencies governing employment and obtain simple business guidance. For example, in California, our Employment Development Department offers both guidance and frequent seminars (usually scheduled well before the business day) covering employment law basics. People can also look to local or state private organizations such as the California Chamber of Commerce--who provide both comprehensive guidance and even pre-made packages containing postings and personnel administration materials. Finally, if these resources are not readily available, make a small initial investment with either an employment-law attorney or human resources consultant, who can efficiently provide guidance and basic materials such as policies against harassment, immigration forms and payroll guidelines. That small investment can pay for itself many times over when the business grows.

OKAY. RICK, HOW DOES A LAWYER RELAX AND DE-STRESS UP HERE IN WINE COUNTRY? I THINK I KNOW THE ANSWER. BUT ...

By drinking wine, of course! I enjoy visiting both clients and non-clients throughout my area, and the wine country is full of great restaurants and wineries. We also enjoy a spectacular natural landscape for running, hiking and picnicking year-round.

EVER GET BEHIND THE STOVE YOURSELF? HAVE YOU COOKED FOR CLIENTS?

Definitely! I do enjoy cooking and, after college, seriously considered a culinary education. When I went to law school, I attended Cornell University, which, as you know, has an excellent hotel and hospitality management program. So cooking and hospitality have been a big part of my life for many years. I especially enjoy having small get-togethers at home and cooking regional cuisine from places such as Spain, Morocco and South America. Most often, though, my wife and I just invite people over for causal grilling and local wine. It's the wine county life, after all!

SO WHAT SORT OF LOCAL WINE DO YOU FIND YOURSELF BRINGING TO DINNER WITH YOU?

Wines from all around the north coast (that includes Sonoma, Napa, Mendocino) that reflect the local and growing conditions.

DO YOU MISS GRINDING IT OUT IN A BIG CORPORATE LAW FIRM IN THE CITY?

Not at all. I was a partner in one of the country's largest firms for years, and I continue working with my former colleagues to this day. But focusing my practice on areas I enjoy, and clients I know, is far more rewarding than I ever imagined.

LET'S TALK RIVALRIES. AS A UCLA ALUM [RYBICKI SPENT HIS UNDERGRADUATE DAYS AS A BRUIN], SURELY THERE'S NO QUESTION YOU'D PICK UCLA OVER USC ANY DAY, BUT TELL ME. WHEN IT COMES TO WINE. WHO DO YOU LIKE, NAPA OR SONOMA?

Can I talk to my lawyer on that one?

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Rybicki & Blevans, LLP

[phone]

www.rbcounsel.com