Guns-in-bars ruling is a win for tourism industry
By GAIL KERR • tennessean.com  -  November 22, 2009
http://www.tennessean.com/article/20091122/COLUMNIST0101/911220363/1009
That noise you heard Friday afternoon was the sound of celebratory cheers all
over Nashville.
Nope, not another Titans win (yet). No, the whoops and hollers came from
Nashville's tourism promoters and restaurant owners upon hearing the news that a
local judge had overturned the state's guns-in-bars law.
Score a big one for the home team.
The bill, opposed by most restaurant owners and the restaurant industry, and
vetoed by Gov. Phil Bredesen, was the worst thing to happen to a tourist town
since Prohibition. That it came during a deep recession added to the
frustration.
"We've had individual visitors canceling their trips," said Butch Spyridon,
president of the Nashville Convention & Visitors Bureau. "We got a lot of
negative press internationally. When you are a city that leads the list of
friendliest cities in the country, it was a tough message to overcome."
The legislation, passed by the Tennessee General Assembly earlier this year,
allowed people with handgun carrying permits to bring guns into bars and
restaurants, so long as they were not drinking. Establishments were allowed to
"opt out" of the bill, by posting a no-handguns sign on the front door.
Nothing says "family-friendly vacation" like a sign assuring Mom that no shots
would be fired while Junior eats his chicken fingers.
"It was almost worse than the law allowing it," Spyridon said. "It compounded
the problem. I am a supporter of the Second Amendment, but guns and alcohol
don't mix. For an industry like us, you want and have to convey a safe
environment."
Randy Rayburn, owner of the Sunset Grill, Midtown and Cabana restaurants, filed
a lawsuit with nine other plaintiffs, claiming the law was unconstitutional. On
Friday, Davidson County Chancellor Claudia Bonnyman agreed, calling it "fraught
with ambiguity."
Among the ambiguities that made this a bad piece of legislation: It was not
clear if hotels or country clubs were included. It never specified where the
liability would lie if a place opted out. It did not address the safe workplace
concerns.
"The heart of my worries, in addition to the safety of our customers and
employees, was we are in the hospitality business," Rayburn said. "We are in the
business of welcoming people from all across this state and country and world to
our front doors. The last thing we wanted to say was 'don't enter. ' "
The signs on his restaurant doors scared customers who were not familiar with
the law, Rayburn said. Tourists and business travelers regularly asked, "Why is
there a no-gun sign on the door? Did something happen here?"
It remains to be seen if the state will appeal Bonnyman's ruling. Either way,
the legislature will undoubtedly take another crack at this in January. But for
now, a judge has ruled that guns in bars and restaurants are illegal.




[Non-text portions of this message have been removed]

November 18, 2009, 9:06am PST

Study: Morale low at a quarter of workplaces

Puget Sound Business Journal (Seattle)
Workplace morale is flagging in some offices. In a study, 23 percent of 2,900
polled workers said their current organization’s employee morale is low.

The CareerBuilder survey indicated that 40 percent of those polled said they
have had difficulty staying motivated at work in the last year and 24 percent do
not feel loyal to their current employer.














 
Thirty-eight percent said they felt there was departmental favoritism at work,
which could contribute to low morale, and 28 percent said they don’t think
their department is important to senior leadership.
About 40 percent said their stress level at work is high and 47 percent said
their workload has increased in the last year. About 20 percent are dissatisfied
with their work/life balance.
The survey was conducted by Harris Interactive between Aug. 20 and Sept. 9.
Chicago-based CareerBuilder is partly owned by Redmond computer giant Microsoft
Corp. (NASDAQ: MSFT), as well as Gannett Co. Inc. (NYSE: GCI) and the McClatchy
Co. (NYSE: MNI).




[Non-text portions of this message have been removed]

8 signs it's time to walk away from an opportunity
You need to learn to say "no" to find true career satisfaction, Amber Riviere
writes. Don't be afraid of turning down work that doesn't fuel your passion,
feels wrong in your gut or is draining you emotionally. "It's just as important
to turn away the wrong opportunities as it is to jump on the right ones," she
writes. Web Worker Daily (11/17)
 
Knowing When to Fold ‘Em
Amber Riviere November 17th, 2009
 “Know when to hold ‘em, know when to fold ‘em, know when to walk away,
and know when to run.” – Kenny Rogers, “The Gambler”
Our impulse is usually to try to do everything. Opportunities present
themselves, and we think, “If I turn this away, I may not get another shot.
What if there’s nothing else coming down the pike?”
Early on in our careers, especially, it’s tempting to want to take on every
job, collaborate with every potential strategic alliance, and never turn down
anyone for anything. Sometimes, though, the best option is in the not doing.
But, how do you know when is a good time to hold and when is a good time to
fold? Here are a few clues.
It’s not your passion. I’ve talked with a lot of successful entrepreneurs,
and one common trait among them is that they follow their passion. They know
what lights them up and what wears them down, and they stay true to themselves
and their mission at all times.
Your gut is telling you something. Intuition is often a big influencing factor
for successful entrepreneurs and small business owners. If they feel a strong
pull one way or another, they learn to trust that instinct, and it rarely leads
them astray.
It’s not in the plan. Although passion and gut instinct weigh heavily on the
decision-making of those who are successful, it’s still important to have a
vision and a plan. Goals and intentions should be a driving force behind your
daily actions, which will help you stay the course when distractions and
obstacles get in your way.
It’s draining you. There are clients and tasks that simply don’t match well
with your own personality, strengths, weaknesses and working style. Instead of
trying to fit a square peg into a round hole, accept that (for whatever reason)
you just aren’t the right fit for each other and move on.
You’re spinning your wheels. There are situations where no matter what you do,
you just can’t make it work. For instance, you might have a client who never
takes your advice, does things his own way, and then comes back to you to fix it
after the fact. It can be frustrating and wastes your valuable time on someone
who will probably never change.
You’re overextended. The more your business grows, the more selective you have
to become with how you spend your time and energy. Although that should be the
case from the very start, it’s not until things become increasingly demanding
that you begin to feel the crunch and understand the importance of being so
selective.
You’ve hit a plateau or are floundering. Most successful people know that
failed attempts, ruts and slumps are part of the game, but they also know when
to say enough. Doing more of the wrong thing isn’t going to make things right,
so they learn to ask tough questions and get down to the truth of a situation,
rather than have it continually wear away at their energy and progress.
You’re being undervalued. There are times when a client or a partner doesn’t
acknowledge or appreciate the value you bring to the table, and when that’s
the case, you simply have to get out of a toxic relationship. It’s not always
easy, but is very necessary for your own success and peace of mind.
In business, there are times when you have to be willing to walk away or risk
paying an even bigger price down the line — your success and ultimate
satisfaction with your life and work. While it’s not the easiest thing to do,
it’s just as important to turn away the wrong opportunities as it is to jump
on the right ones.

What criteria do you use to weigh prospective opportunities and avoid taking on
clients and work that isn’t well-suited for you, or that holds you back from
success?




[Non-text portions of this message have been removed]

Paid sick leave takes center stage in NYC

By Elissa   Elan  NRN  11/17/09
NEW YORK (Nov. 17, 2009) Small business owners rallied on the steps of City Hall
Tuesday to voice their opposition to a measure mandating paid sick leave for
employees in New York City, one of several states and municipalities across the
country weighing such legislation.
Employers argue that paid sick leave would increase operating expenses and
further hamstring businesses already struggling in the down economy, leading to
reduced economic and job growth.
If the measure passes, New York would become the third city behind San Francisco
and Washington, D.C., to require businesses to offer paid sick leave to
employees. Similar measures have been introduced in 15 states, including
Connecticut, New Jersey, Maine and Ohio, although none have passed into law. At
the federal level, the Healthy Families Act, which would provide up to seven
days of paid sick leave, was introduced earlier this year in the House and
Senate, and has garnered support from President Obama.
In New York, businesses gathered at City Hall to protest the proposed
legislation, which is now under deliberation by the New York City Council and
supported by about three-quarters of its 51 members.
“This bill is bad legislation for a good cause,” said Linda Barron,
president of the Staten Island Chamber of Commerce. “Two-thirds of our
business membership surveyed said they already allow a generous amount of paid
sick days. Mandating paid time off would cost a minimum of $2 billion to $3
billion a year across all of the [New York] boroughs.”
The bill would require all New York City businesses with more than 10 workers to
provide up to nine paid sick days for every employee, whether they work full- or
part-time. Any business owner that does not adhere to the regulation would face
a $1,000 fine per violation, the bill proposes.
“We will be forced to reduce salaries, cut benefits and lay off employees,”
Barron said. “Passage of this bill would force many of us to move to more
affordable locations and hamper job creation in this city. It makes no sense.”
For the restaurant industry, enforcing paid sick leave would be fiscally
challenging, especially for operators already seeing slowed sales that cannot
cover increased costs, said Marc Murphy, chef-owner of New York City’s Anvil
Group, which operates the upscale Landmarc and Ditch Plains restaurants.
“If this thing passes, with 320 employees it would cost me $199,000 a year,”
he said. “That’s a lot of money, even for me. It would hurt my business and
maybe even cause me to have to close one of my smaller restaurants.”
Murphy said he’d rather take that money and spend it on his company’s growth
with new locations, which he said would result in creating more jobs and helping
landlords fill open spaces.
“I’d like to hire some more people, and there’s a lot of real estate
available here in New York,” he said. “That $199,000 is a lot of seed money
with which to start a new business.”
According to Peter Hansen, Murphy’s director of operations, all of Anvil
Group’s managers already get five sick days, five personal days and are
entitled to one week of vacation after one year of employment. He said sick
employees, especially now with the threat of Swine Flu so widespread, are
“encouraged to stay home” when they are ill. “We have to stay very aware
of the health department’s regulations and make sure to follow all rules that
are set forth.”
On the day of the rally, Ricardo Copantitla, a restaurant worker and member of
the Restaurant Opportunities Center of New York, or ROC-NY, said in a prepared
statement that he felt he had to work even when sick because he was not entitled
to paid sick leave. He supports the proposed legislation.
“The restaurant said you have to come to work because [we’re] short of
people,” he said. “I had a bad cough and felt tired and terrible, but I went
to work because I feared being fired.”
Contact Elissa Elan at eelan@....


Read more:
http://www.nrn.com/breakingNews.aspx?id=376078&utm_source=MagnetMail&utm_medium=\
email&utm_term=tips@waitersworld.com&utm_content=NRN-News-NRNam-11-19-09&utm_cam\
paign=Nov.%2019,%202009%20%20Having%20words%20with%20Panera's%20Ron%20Shaich#ixz\
z0XKErAL1n




[Non-text portions of this message have been removed]

100 Things Restaurant Staffers Should Never Do (Part 1)
By BRUCE BUSCHEL   NY Times October 29, 2009
http://boss.blogs.nytimes.com:80/2009/10/29/one-hundred-things-restaurant-staffe\
rs-should-never-do-part-one/


 
Herewith is a modest list of dos and don’ts for servers at the seafood
restaurant I am building. Veteran waiters, moonlighting actresses, libertarians
and baristas will no doubt protest some or most of what follows. They will claim
it homogenizes them or stifles their true nature. And yet, if 100 different
actors play Hamlet, hitting all the same marks, reciting all the same lines,
cannot each one bring something unique to that role?
 
1. Do not let anyone enter the restaurant without a warm greeting.
2. Do not make a singleton feel bad. Do not say, “Are you waiting for
someone?” Ask for a reservation. Ask if he or she would like to sit at the
bar.
3. Never refuse to seat three guests because a fourth has not yet arrived.

4. If a table is not ready within a reasonable length of time, offer a free
drink and/or amuse-bouche. The guests may be tired and hungry and thirsty, and
they did everything right.
5. Tables should be level without anyone asking. Fix it before guests are
seated.
6. Do not lead the witness with, “Bottled water or just tap?” Both are fine.
Remain neutral.
7. Do not announce your name. No jokes, no flirting, no cuteness.
8. Do not interrupt a conversation. For any reason. Especially not to recite
specials. Wait for the right moment.
9. Do not recite the specials too fast or robotically or dramatically. It is not
a soliloquy. This is not an audition.
10. Do not inject your personal favorites when explaining the specials.
11. Do not hustle the lobsters. That is, do not say, “We only have two
lobsters left.” Even if there are only two lobsters left.
12. Do not touch the rim of a water glass. Or any other glass.
13. Handle wine glasses by their stems and silverware by the handles.
14. When you ask, “How’s everything?” or “How was the meal?” listen to
the answer and fix whatever is not right.
15. Never say “I don’t know” to any question without following with,
“I’ll find out.”
16. If someone requests more sauce or gravy or cheese, bring a side dish of
same. No pouring. Let them help themselves.
17. Do not take an empty plate from one guest while others are still eating the
same course. Wait, wait, wait.
18. Know before approaching a table who has ordered what. Do not ask, “Who’s
having the shrimp?”
19. Offer guests butter and/or olive oil with their bread.
20. Never refuse to substitute one vegetable for another.
21. Never serve anything that looks creepy or runny or wrong.
22. If someone is unsure about a wine choice, help him. That might mean sending
someone else to the table or offering a taste or two.
23. If someone likes a wine, steam the label off the bottle and give it to the
guest with the bill. It has the year, the vintner, the importer, etc.
24. Never use the same glass for a second drink.
25. Make sure the glasses are clean. Inspect them before placing them on the
table.
26. Never assume people want their white wine in an ice bucket. Inquire.
27. For red wine, ask if the guests want to pour their own or prefer the waiter
to pour.
28. Do not put your hands all over the spout of a wine bottle while removing the
cork.
29. Do not pop a champagne cork. Remove it quietly, gracefully. The less noise
the better.
30. Never let the wine bottle touch the glass into which you are pouring. No one
wants to drink the dust or dirt from the bottle.
31. Never remove a plate full of food without asking what went wrong. Obviously,
something went wrong.
32. Never touch a customer. No excuses. Do not do it. Do not brush them, move
them, wipe them or dust them.
33. Do not bang into chairs or tables when passing by.
34. Do not have a personal conversation with another server within earshot of
customers.
35. Do not eat or drink in plain view of guests.
36. Never reek from perfume or cigarettes. People want to smell the food and
beverage.
37. Do not drink alcohol on the job, even if invited by the guests. “Not when
I’m on duty” will suffice.
38.Do not call a guy a “dude.”
39. Do not call a woman “lady.”
40. Never say, “Good choice,” implying that other choices are bad.
41. Saying, “No problem” is a problem. It has a tone of insincerity or
sarcasm. “My pleasure” or “You’re welcome” will do.     
42. Do not compliment a guest’s attire or hairdo or makeup. You are insulting
someone else.
43. Never mention what your favorite dessert is. It’s irrelevant.
44. Do not discuss your own eating habits, be you vegan or lactose intolerant or
diabetic.
45. Do not curse, no matter how young or hip the guests.
46. Never acknowledge any one guest over and above any other. All guests are
equal.
47. Do not gossip about co-workers or guests within earshot of guests.
48. Do not ask what someone is eating or drinking when they ask for more;
remember or consult the order.
49. Never mention the tip, unless asked.
50. Do not turn on the charm when it’s tip time. Be consistent throughout.
Next week: 51-100.




[Non-text portions of this message have been removed]

100 Things Restaurant Staffers Should Never Do (Part 2)
NY Times 11/5/09 By Bruce Buschel
http://boss.blogs.nytimes.com/2009/11/05/one-hundred-things-restaurant-staffers-\
should-never-do-part-2/?em
This is the second half of the 100 do’s and don’ts from last week’s post.
Again, this list is for one particular restaurant, mine, which is under
construction in Bridgehampton, N.Y., and will, with any luck, open this spring.
I realize that every deli needs a wisecracking waiter, most pizza joints can
handle heavy metal, and burgers always taste better when delivered by a server
with tattoos and tongue piercing(s).
Not even a hundred suggestions can cover all the bases, so one is grateful for
the many comments following the 50, including striking “you guys” from the
restaurant lexicon and making sure the alcohol order is taken lickety-split.
Thanks for all of the help.
51. If there is a service charge, alert your guests when you present the bill.
It’s not a secret or a trick.
52. Know your menu inside and out. If you serve Balsam Farm candy-striped beets,
know something about Balsam Farm and candy-striped beets.
53. Do not let guests double-order unintentionally; remind the guest who orders
ratatouille that zucchini comes with the entree.
54. If there is a prix fixe, let guests know about it. Do not force anyone to
ask for the “special” menu.
55. Do not serve an amuse-bouche without detailing the ingredients. Allergies
are a serious matter; peanut oil can kill. (This would also be a good time to
ask if anyone has any allergies.)
56. Do not ignore a table because it is not your table. Stop, look, listen, lend
a hand. (Whether tips are pooled or not.)
57. Bring the pepper mill with the appetizer. Do not make people wait or beg for
a condiment.
58. Do not bring judgment with the ketchup. Or mustard. Or hot sauce. Or
whatever condiment is requested.
59. Do not leave place settings that are not being used.
60. Bring all the appetizers at the same time, or do not bring the appetizers.
Same with entrees and desserts.
61. Do not stand behind someone who is ordering. Make eye contact. Thank him or
her.
62. Do not fill the water glass every two minutes, or after each sip. You’ll
make people nervous.
62(a). Do not let a glass sit empty for too long.
63. Never blame the chef or the busboy or the hostess or the weather for
anything that goes wrong. Just make it right.
64. Specials, spoken and printed, should always have prices.
65. Always remove used silverware and replace it with new.
66. Do not return to the guest anything that falls on the floor — be it
napkin, spoon, menu or soy sauce.
67. Never stack the plates on the table. They make a racket. Shhhhhh.
68. Do not reach across one guest to serve another.
69. If a guest is having trouble making a decision, help out. If someone wants
to know your life story, keep it short. If someone wants to meet the chef, make
an effort.
70. Never deliver a hot plate without warning the guest. And never ask a guest
to pass along that hot plate.
71. Do not race around the dining room as if there is a fire in the kitchen or a
medical emergency. (Unless there is a fire in the kitchen or a medical
emergency.)
72. Do not serve salad on a freezing cold plate; it usually advertises the fact
that it has not been freshly prepared.
73. Do not bring soup without a spoon. Few things are more frustrating than a
bowl of hot soup with no spoon.
74. Let the guests know the restaurant is out of something before the guests
read the menu and order the missing dish.
75. Do not ask if someone is finished when others are still eating that course.
76. Do not ask if a guest is finished the very second the guest is finished. Let
guests digest, savor, reflect.
77. Do not disappear.
78. Do not ask, “Are you still working on that?” Dining is not work —
until questions like this are asked.
79. When someone orders a drink “straight up,” determine if he wants it
“neat” — right out of the bottle — or chilled. Up is up, but “straight
up” is debatable.
80. Never insist that a guest settle up at the bar before sitting down; transfer
the tab.
81. Know what the bar has in stock before each meal.
82. If you drip or spill something, clean it up, replace it, offer to pay for
whatever damage you may have caused. Refrain from touching the wet spots on the
guest.
83. Ask if your guest wants his coffee with dessert or after. Same with an
after-dinner drink.
84. Do not refill a coffee cup compulsively. Ask if the guest desires a refill.
84(a). Do not let an empty coffee cup sit too long before asking if a refill is
desired.
85. Never bring a check until someone asks for it. Then give it to the person
who asked for it.
86. If a few people signal for the check, find a neutral place on the table to
leave it.
87. Do not stop your excellent service after the check is presented or paid.
88. Do not ask if a guest needs change. Just bring the change.
89. Never patronize a guest who has a complaint or suggestion; listen, take it
seriously, address it.
90. If someone is getting agitated or effusive on a cellphone, politely suggest
he keep it down or move away from other guests.
91. If someone complains about the music, do something about it, without
upsetting the ambiance. (The music is not for the staff — it’s for the
customers.)
92. Never play a radio station with commercials or news or talking of any kind.
93. Do not play brass — no brassy Broadway songs, brass bands, marching bands,
or big bands that feature brass, except a muted flugelhorn.
94. Do not play an entire CD of any artist. If someone doesn’t like Frightened
Rabbit or Michael Bublé, you have just ruined a meal.
95. Never hover long enough to make people feel they are being watched or
hurried, especially when they are figuring out the tip or signing for the check.
96. Do not say anything after a tip — be it good, bad, indifferent — except,
“Thank you very much.”
97. If a guest goes gaga over a particular dish, get the recipe for him or her.
98. Do not wear too much makeup or jewelry. You know you have too much jewelry
when it jingles and/or draws comments.
99. Do not show frustration. Your only mission is to serve. Be patient. It is
not easy.
100. Guests, like servers, come in all packages. Show a “good table” your
appreciation with a free glass of port, a plate of biscotti or something else
management approves.
 
Bonus Track: As Bill Gates has said, “Your most unhappy customers are your
greatest source of learning.” (Of course, Microsoft is one of the most
litigious companies in history, so one can take Mr. Gates’s counsel with a
grain of salt. Gray sea salt is a nice addition to any table.)




[Non-text portions of this message have been removed]

The Psychology of Hospitality
PsychologyToday.com� November 10, 2009
http://www.psychologytoday.com/blog/stuck/200911/the-psychology-hospitality
�
Frazzled, fearful, financially strapped travelers feel new anxieties.

In a divisive, financially drained, fear-deluged post-9/11 era during which
every cent counts, the choices we make around travel and dining out are fraught
with anxiety. If we're already worried about whether the stranger behind us in
line is the next Fort Hood gunman and whether we'll still be employed -- or
alive -- six months from now, then hotel rooms and restaurant meals take on
whole new meanings, from Can I afford this? to Is this meal my last?
�
"The economy has played psychological warfare on our industry," affirmed Andrew
Freeman, founder of San Francisco-based Andrew Freeman & Co. Hospitality and
Restaurant Consultants, when I interviewed him recently about the psychology of
hospitality. Tough competition mandates new strategies. In what Freeman calls
"an era of experiential living," traveling and dining out are about much more
than just being hungry or needing shelter for the night: "You have almost
unlimited choices and everyone's vying for your business, so what it comes down
to is how you expect to be treated in someone else's hands."
�
Those expectations play on a wide array of very personal issues of which the
customer might not even be fully conscious, "such as the way a chair feels and
whether the lighting makes your skin look good when you feel haggard," and even
the design and condition of restaurant menus.
�
"It starts with the phone call when you're making reservations. How does the
voice on the other end sound and what does it say? You wouldn't believe how
psychologically loaded simply making a reservation can be," mused Freeman, who
worked for ten years with Kimpton Hotels and Restaurants and was vice president
of public relations and marketing at the World Trade Center's Windows of the
World, guiding its re-launch after the first WTC bombing in 1992. As for
restaurant menus, "if the menu has a typo or your copy is stained, then there's
a perception -- yes, your mind can work that fast and make these judgments --
that the kitchen is dirty or that the management is careless." Listing menu
items in increasing price order, starting with the least expensive, is a
grievous error, Freeman explained, as it makes diners hyperaware of their
wallets and hypersensitive about being perceived by companions as "cheap."
�
As leisure travel becomes more of a precious rarity and business trips are
further and further curtailed, a primary concern among hotel-seekers these days
is ultra-convenience.
�
"Face it: Traveling isn't as much fun as it used to be, and the guest today is
thinking: Please just make my life as easy as possible,"
Freeman told me. As a result, hotels strive to find ways to save their guests
time and trouble, whether this means offering high-quality dining and shopping
on the property; maintaining personal-preference profiles for repeat visitors;
or offering extra safety options for female travelers. The message is one of
reassurance and competence; Freeman sums it up as: "Forgot it? We've got it."
�
"If you do it right, then hopefully you get that big 'sigh moment,' when the
guest says: Yes. They really get me. They understand what's important to me,"
Freeman said.
�
And what is important? While the answer varies as much as guests do, a key
factor in the psychology of hospitality is the abiding sense that "hotels are an
extension of home -- but with an air of escapism. At hotels, you don't have to
make your bed in the morning. One of the pleasures of a hotel is coming out of a
shower, throwing your towel on the floor, and knowing that when you get back to
your room later that day, the towel's going to be picked up and your bed's going
to be made."
�
Now more than ever, that old hospitality-industry clich� "at your service" is a
selling point. Some hotels are offering mini spa treatments. Others offer
on-site activities such as art workshops, fashion or cooking demonstrations and
social-networking events such as wine evenings and teas. "A lot of hotels now
are going after the gay market," Freeman said. For the gay traveler, as for all
travelers, "the big psychological issue is: How am I going to be treated? I
don't want to feel any disrespect. I don't want them to automatically offer me
and my partner two separate beds because we're two men. I want the staff to
understand this when we arrive."
�
In hotels and restaurants, stuff goes wrong and stuff goes right. And it's human
nature, Freeman said, to focus on the wrong. "We all love to tell war stories of
our own bad experiences as diners and guests. It's much more fun to say, 'I
found a piece of glass in my salad' than 'Mmm, I had this amazing salad the
other night.'
�
"We in the industry have to always be prepared for the wrongs, because they
happen. If a server walks over to your table and he's clearing away the entree
dishes and you haven't touched your food and he asks you why and you say it's
because you weren't hungry, you're almost certainly lying. I'd rather the server
just dig in and find out the truth. I want him to ask you, Was there something
you didn't like about the dish? You can change a negative to a positive in the
moment, but once that moment is gone -- it's gone."




[Non-text portions of this message have been removed]

Tele-Seminar Session: Tuesday, November 10th
Restaurant Service that Increases Sales in Today's Marketplace
Tips, Tactics & Strategies for Today's Owners & Managers
http://www.1automationwiz.com/app/?Clk=3363303

Specifically developed for independents and small restaurant groups, this
session will help you obtain a clear understanding of what your guests are
looking for in today's restaurant service and how to implement service
techniques that will build sales for years to come.
 
In this 60-minute tele-seminar, you will learn:

Three surefire ways of making your restaurant experience special
Five mistakes your staff are making that drive your guests to the competition
How to construct a model of the guest for your restaurant
The three keys and philosophy of Great Service
The elements creating the tripod of the Guest Experience
Key strategies for retaining customers and turning them into big fans
What's the real deal with the word "Value"
Four ways to make the "Pricing Wars" work to your restaurant's advantage
Where to make cuts in your restaurant in tough times, and where not to
How to answer the staff's question, "What's in it for me?"
Attendee Q&A and more...
Register Now: http://www.1automationwiz.com/app/?Clk=3363303
Expert Speakers:

Darren Dennington, Restaurant Coach and Owner of Service With Style, a mystery
shopping service dedicated exclusively to restaurants and hospitality
establishments.

John Hendrie, Owner of Hospitality Performance, a full-service hospitality
consulting company, specializing in the guest experience.

The session will be moderated by Jaime Oikle, Owner of RestaurantReport.com and
RunningRestaurants.com


Date & Time: Tuesday, November 10th 2009 at 3:30PM Eastern (2:30PM Central,
1:30PM Mountain, 12:30PM Pacific)
 
Can't make the live event? No worries...we'll record it for you. By registering
you will have access to both the live seminar as well as a downloadable
recording of the session. So, even if you can't make it live, you'll still want
to register to make sure you receive access to download the recording, plus
you'll get the bonus recording.
Price: $39 (includes live access, plus downloadable MP3 recording, plus the
bonus audio MP3 seminar)
Click link below to register and reserve your spot::
http://www.1automationwiz.com/app/?Clk=3363303
 
Special Bonus!
Everyone who registers will also receive the audio recording of RR's best
selling "Service Wows" session with "Professor of Service", Ian Maksik

Delivering Service Wows! How to Get on the Same Service Page: Ian gives a
wonderful (and entertaining) discussion of service basics and service WOWS that
will get your restaurant on the Same Service Page. (a $29.95 value)

Note: This bonus audio download will be included on the download page for the
Restaurant Service Seminar, which will be available 2-3 days after the live
event.

100% Satisfaction Guarantee!
We offer a no hassles, 100% money-back guarantee. If you register for the
seminar and after listening to the live or recorded session decide that we did
not deliver to your expectations, you simply contact us for a full refund of
your seminar registration. Your Satisfaction is Guaranteed. Period.

Register NOW for the seminar and SPECIAL BONUS…
http://www.1automationwiz.com/app/?Clk=3363303
 
You don't want to miss this event!








What is a Tele-Seminar?

A tele-seminar is like a giant telephone conference call. In your home or
office, you listen to the host interview the guests.
After you register, you will receive complete instructions that include the
phone number to call to get onto the line.
The call will be recorded, so if you miss any portion of the live session you
will still have access to the entire seminar.
 





[Non-text portions of this message have been removed]

Lawry's settles discrimination lawsuit
The parent to Lawry's The Prime Rib has agreed to pay more than $1 million to
settle a class-action discrimination lawsuit charging that the company had a
tradition of hiring only women as servers.
By Lisa  Jennings – Nations Restaurant News 11.3.09
http://www.nrn.com:80/breakingNews.aspx?id=375392&utm_source=MagnetMail&utm_medi\
um=email&utm_term=tips@waitersworld.com&utm_content=NRN-News-NRNam-11-4-09&utm_c\
ampaign=Nov.%204,%202009%20-%20Restaurants%20look%20to%20spike%20bar%20sales





 
LOS ANGELES (Nov. 3, 2009) The parent to Lawry’s The Prime Rib has agreed to
pay more than $1 million to settle a class-action discrimination lawsuit
charging that the company had a tradition of hiring only women as servers, the
U.S. Equal Employment Opportunity Commission said Monday.
The settlement has yet to be approved by a federal district judge, but the Los
Angeles-based company has outlined plans to change its ways and recruit more men
into the higher-earning server positions, said Anna Park, the EEOC’s regional
attorney in Los Angeles.
The lawsuit, which stemmed from a 2003 complaint by a busboy who said he was
denied a job as a server, cited the practice at three of Lawry’s Restaurants
Inc.’s brands, including the Tam O’ Shanter Inn, the Five Crowns and the
Lawry’s The Prime Rib chain. The company also operates the fast-casual
Lawry’s Carvery chain, which was not cited in the EEOC’s lawsuit.
Lawry’s, which is known for its tableside presentation, for decades hired only
women to serve food, whereas men were hired as “carvers,” slicing meat on a
chrome-domed cart, a role that typically did not earn tips.
Rich Cope, Lawry's director of marketing, said the company stopped the practice
of hiring only female servers in 2004. He noted that between 20 percent and 25
percent of servers at the three brands are male, though the number of men
waiting tables varies by restaurant.
One challenge, Cope said, was that the company has very low turnover and many
servers have been working there for decades.
Park, however, said the recent agreement aims to ensure that policies were in
place to change the perception that the company is only interested in women for
server jobs.
Under the agreement, the company will pay $500,000 to an unknown number of men
deemed to have been denied a server position between 2003 and 2006. Park said
potentially hundreds of plaintiffs may be allowed to join in the class action.
The company has agreed to devote another $225,000 toward training to ensure
compliance, as well as another $300,000 for advertising the fact that men are
welcome to apply for server jobs.
Park said the Lawry’s case is unusual in that it’s usually women who are
denied server positions in traditional high-end restaurants. Within the past
decade, the EEOC has been involved in such complaints at The Palm steakhouse
chain, for example, as well as Joe’s Stone Crab restaurant in Miami.
The parent to the Hooters restaurant chain, however, reportedly in April settled
a discrimination complaint filed by a Texas man who said he was denied a server
position because of his gender. The settlement agreement in that case was
confidential and involved only the franchisee in Corpus Christi, Texas, where
the man sought employment.
Parent company Hooters of America has long argued in such cases that its Hooters
Girls provide entertainment -- for which equal employment law allows exceptions
-- in addition to serving food.
“Forcing Hooters to hire men as waiters,” the company said on its website,
“would be like forcing Radio City Music Hall to hire male Rockettes for its
famed chorus line.”
Contact Lisa Jennings at ljenning@....


Read more:
http://www.nrn.com/breakingNews.aspx?id=375392&utm_source=MagnetMail&utm_medium=\
email&utm_term=tips@waitersworld.com&utm_content=NRN-News-NRNam-11-4-09&utm_camp\
aign=Nov.%204,%202009%20-%20Restaurants%20look%20to%20spike%20bar%20sales#ixzz0W\
3APOH9B




[Non-text portions of this message have been removed]

Oregon Tip Pooling (10/09)
Cumbie v Woody Woo Inc.
http://www.dol.gov/sol/media/briefs/cumbie(A)-4-29-2009.htm
 
This could open the door for restaurant employers to legally dictate tip pools
any way they want. The case has been heard and the final decision is pending in
the US Court of Appeals for the Ninth Circuit. While the parties are in Oregon,
the outcome could set a precedence for not only Oregon, but across the nation on
what makes tip-pooling legal in the USA. Only Colorado and California have state
statutes that make tip-pooling illegal. Most restaurant consumers are in the
dark about tip pooling and how their intended tips are diverted by restaurant
employers.
 
 
 
Cumbie v Woody Woo Inc.
http://www.dol.gov/sol/media/briefs/cumbie(A)-4-29-2009.htm
 
Cumbie Amicus Brief
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
___________________________________________
No. 08-35718
_________________________
MISTY CUMBIE,
Plaintiff-Appellant,
v.
WOODY WOO, INC., et al.,
Defendants-Appellees.
________________________
On Appeal from the United States District Court
for the District of Oregon
________________________________
BRIEF FOR THE SECRETARY OF LABOR AS AMICUS CURIAE IN SUPPORT OF
PLAINTIFF-APPELLANT
_________________________________________________________
CAROL A. DE DEO
Deputy Solicitor for National Operations
STEVEN J. MANDEL
Associate Solicitor
PAUL L. FRIEDEN
Counsel for Appellate Litigation
MARIA VAN BUREN
Senior Attorney
U.S. Department of Labor
Office of the Solicitor
Room N-2716
200 Constitution Avenue, NW
Washington, DC 20210
(202) 693-5555
________________________________________________________________
________________________________________________________________
TABLE OF CONTENTS
TABLE OF AUTHORITIES
STATEMENT OF INTEREST OF THE SECRETARY OF LABOR
STATEMENT OF THE ISSUE
STATEMENT OF THE CASE
A.    Statement of Facts and Course of Proceedings
B.    The District Court's Decision
SUMMARY OF ARGUMENT
ARGUMENT
THE DISTRICT COURT ERRED WHEN IT CONCLUDED THAT A TIPPED EMPLOYEE WAS PRECLUDED
FROM CHALLENGING HER EMPLOYER'S INVALID TIP POOL BECAUSE THE EMPLOYER HAD NOT
ELECTED TO TAKE A TIP CREDIT UNDER SECTION 3(m) OF THE FLSA
CONCLUSION
CERTIFICATE OF COMPLIANCE PURSUANT TO Fed. R. App. P. 29(d) and Circuit Rule
32-1 for Case No. 07-35633
CERTIFICATE OF SERVICE
  Back to Top
TABLE OF AUTHORITIES
Cases
Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728 (1981)
Chan v. Triple 8 Palace, Inc., No. 03 Civ. 6048, 2006 WL 851749 (S.D.N.Y. Mar.
30, 2006)
Chao v. FOSSCO, Inc., No. 03-3360, 2006 WL 1041353 (W.D. Mo. Apr. 13, 2006)
Cooper v. Thomason, No. 06-1018, 2007 WL 306311 (D. Or. 2007)
Cumbie v. Woody Woo, Inc., No. cv.08-504, 2008 WL 2884484 (D. Or. July 25, 2008)
Davis v. B & S Inc., 38 F. Supp.2d 707 (N.D. Ind. 1998)
Donovan v. Tavern Talent & Replacement, Inc., No. 84-F-401, 1986 WL 32746 (D.
Colo. Jan. 8, 1986)
Doty v. Elias, 733 F.2d 720 (10th Cir. 1984)
Federal Express Corp. v. Holowecki, 128 S. Ct. 1147 (2008)
Klem v. County of Santa Clara, Cal., 208 F.3d 1085 (9th Cir. 2000)
Martin v. Tango's Rest. Inc., 969 F.2d 1319 (1st Cir. 1992)
Nixon v. Missouri Mun. League, 541 U.S. 125 (2004)
Platek v. Duquesne Club, 961 F. Supp. 835 (W.D. Pa. 1995), aff'd without
opinion, 107 F.3d 863 (3d Cir.), (Table) cert. denied, 522 U.S. 934 (1997)
Real v. Driscoll Strawberry Assocs., Inc., 603 F.2d 748 (9th Cir. 1979)
Richard v. Marriott Corp., 549 F.2d 303 (4th Cir.), cert. denied, 433 U.S. 915
(1977)
Rutherford Food Corp. v. McComb, 331 U.S. 722 (1947)
Skidmore v. Swift, 323 U.S. 134 (1944)
Usery v. Emersons Ltd., No.76-11-A, 1976 WL 1668 (E.D. Va. Nov. 23, 1976), ),
vacated & remanded on other grounds, sub. nom. Marshall v. Emersons Ltd., 593
F.2d 565 (4th Cir. 1979)
Whirlpool Corp. v. Marshall, 445 U.S. 1 (1980)
William O. Gilley Enter., Inc. v. Atlantic Richfield Co., -- F.3d --, 2009 WL
878979 (9th Cir. 2009)
Williams v. Jacksonville Terminal Co., 315 U.S. 386 (1942)
Wright v. U-Let-Us Skycap Serv., Inc., 648 F. Supp. 1216 (D. Colo. 1986)
Statutes
Fair Labor Standards Act of 1938, as amended; 29 U.S.C. 201 et seq.
29 U.S.C. 202(a)
29 U.S.C. 202(b)
29 U.S.C. 203(m)
29 U.S.C. 204(a)
29 U.S.C. 204(b)
29 U.S.C. 216(c)
29 U.S.C. 217
Oregon Revised Statute,
653.035(3)
Small Business Job Protection Act of 1996, Pub. L. No. 104-188, §2105(b), 110
Stat. 1755 (1996)
Code of Federal Regulations
29 C.F.R. 531.35
29 C.F.R. 531.52
29 C.F.R. 531.55(a)
29 C.F.R. 531.55(b)
29 C.F.R. 531.59
Miscellaneous
73 Fed. Reg. 43654 (July 28, 2008)
Department of Labor, Wage and Hour Field Operations Handbook ¶30d01(a),
¶30d04(a), ¶30d04(c) (1988)
Fair Labor Standards Amendments of 1966, Pub. L. No. 89-601, §101(a), 80 Stat.
830 (1966)
Fair Labor Standards Amendments of 1974, Pub. L. No. 93-259, §13, 88 Stat. 55
(1974)
Fair Labor Standards Amendments of 1977, Pub. L. No. 95-151, §3(b), 91 Stat.
1245 (1977)
Fair Labor Standards Amendments of 1989, Pub. L. No. 101-157, §103 Stat. 938
(1989)
FED. R. APP. P., Rule 29
FED. R. CIV. P., Rule 12(b)(6)
Reply Letter dated June 21, 1974, from Warren D. Landis, Acting Administrator,
Wage & Hour Division, United States Dep't of Labor, Employment Standards
Administration, requesting an opinion on a proposed pay plan for waiters &
waitresses subject to the standards of the Fair Labor Standards Act
State of Oregon's Technical Assistance for Employers,
http://www.oregon.gov/BOLI/TA/T_FAQ_Min-wage2008.shtml
United States Dep't of Labor Wage & Hour Opinions Letters,
Opinion Letter WH-310 1975 WL 40934 (Feb. 18, 1975)
Opinion Letter WH-321 1975 WL 40945 (April 30, 1975)
Opinion Letter WH-386 1976 WL 41739 (July 12, 1976)
Opinion Letter WH-489 1978 WL 51435 (Nov. 22, 1978)
Opinion Letter WH-536 1989 WL 610348 (Oct. 26, 1989)
Opinion Letter 2001 WL 1558958 (April 19, 2001)
Opinion Letter FLSA 2005-31, 2005 WL 3308602 (Sept. 2, 2005)
Opinion Letter, FLSA 2006-21 2006 WL 1910966 (June 9, 2006)
S. Rep. No. 93, 93d Cong., 2d Sess. 690 (1974)
S. Rep. No. 1487 (1966), reprinted in 2006 WL 1910966 (June 9, 2006)
112 Cong. Rec. 11362-63 (May 25, 1966)
  Back to Top
No. 08-35718
_________________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
___________________________________________
MISTY CUMBIE,
Plaintiff-Appellant,
v.
WOODY WOO, INC., et al.,
Defendants-Appellees.
________________________
On Appeal from the United States District Court
for the District of Oregon
________________________________
BRIEF FOR THE SECRETARY OF LABOR AS AMICUS CURIAE IN SUPPORT OF
PLAINTIFF-APPELLANT
_________________________________________________________
    Pursuant to Federal Rule of Appellate Procedure 29, the Secretary of
Labor ("Secretary") submits this brief as amicus curiae in support of
plaintiff-appellant Misty Cumbie.  The district court in the above-captioned
case committed legal error when it concluded that Cumbie, a tipped employee, was
precluded from challenging her employer's (defendant-appellee Woody Woo, Inc.)
invalid tip pool under section 3(m) of the Fair Labor Standards Act ("FLSA" or
"Act"), because Woody Woo had not elected to use the tip credit provided in that
section of the Act to pay its employees a reduced cash wage.  See 29 U.S.C.
203(m) (allowing an employer to take a tip credit against the required cash wage
paid to its tipped employees, and permitting a mandatory tip pool if limited to
employees who "customarily and regularly receive tips").  The district court's
conclusion is contrary to the Department of Labor's ("Department") Wage and Hour
Division's ("Wage and
  Hour") longstanding position that section 3(m) of the Act (as amended in 1974)
governs tipped employees' wages generally, and therefore applies irrespective
whether an employer elects a tip credit.  By declining to defer to Wage and
Hour's interpretation of the statutory provision, particularly as set forth in a
1989 opinion letter issued by the Wage and Hour Administrator and as supported
by the relevant legislative history and caselaw, the district court incorrectly
construed the statutory provision, to the detriment of low-wage tipped
employees.
STATEMENT OF INTEREST OF THE SECRETARY OF LABOR
    The Secretary, who is responsible for the administration and enforcement
of the FLSA, see 29 U.S.C. 204(a), (b), 216(c), 217, has compelling reasons to
participate as amicus curiae in this appeal in support of the employee, because
the application of section 3(m) of the Act is central to achieving FLSA
compliance with respect to tipped occupations.  In this case, even though the
tipped employees were paid the minimum wage, they then were required by the
employer, in contravention of section 3(m) of the Act, to contribute their tips
to an invalid tip pool, which redistributed the majority of those tips to
non-tipped employees.  Thus, an affirmance by this Court of the district
court's decision will almost assuredly result in the tipped employees receiving
less than they are entitled to under the Act -- the minimum wage free and clear
plus all of their tips.  Moreover, the decision on appeal is contrary not only
to dispositive legislative history
  and to appellate and other district court precedent, but to Department opinion
letters construing section 3(m) of the Act to apply irrespective whether the
employer has elected to take a tip credit under that section.
STATEMENT OF THE ISSUE
    Section 3(m) of the FLSA, 29 U.S.C. 203(m), sets forth the requirements
for the payment of tipped employees.  It permits an employer to take a "tip
credit" against the cash wage it is required to pay its tipped employees, and
permits the imposition of a mandatory tip pool, provided the tip pool is limited
to employees who "customarily and regularly receive tips."  Woody Woo did not
use the tip credit to pay its employees a reduced cash wage, but did require its
tipped employees, including Cumbie, to turn over all the money they received as
tips to the employer for a tip pool, which redistributed the majority of that
money to employees who do not "customarily and regularly" receive tips.  The
issue presented is whether the district court erred in its conclusion that the
tipped employees were precluded from challenging Woody Woo's invalid tip pool
under the FLSA because the employer had not elected to use the FLSA's tip credit
provision.
  Back to Top
STATEMENT OF THE CASE
A.    Statement of Facts and Course of Proceedings
    1.    Misty Cumbie was employed as a server at a restaurant owned by
Woody Woo, where she received cash wages from the employer and tips from
restaurant patrons.  See Cumbie et al. v. Woody Woo, Inc., 2008 WL 2884484, at
*1 (D. Or. 2008).  Woody Woo paid its tipped employees the full state minimum
wage, which was in excess of the federal minimum wage.  Id.[1]  In accordance
with Oregon state law, which prohibits employers from "'includ[ing] any amount
received by employees as tips in determining the amount of the minimum wage
required to be paid,'" Woody Woo did not take a tip credit against its minimum
wage obligation.  Id. at *1-2, (quoting O.R.S. 653.035(3)).  Woody Woo did
require its servers, however, to turn over all their tips to a tip pool.  Id.
at *1; see appellant's brief at 47 (alleging that "[i]n order for Plaintiff to
receive a check for the minimum wage, she was required to turn over all of her
tips to her employer").[2] 
  The tip pool was used to distribute 55 to 70 percent of the tips contributed by
servers to kitchen staff.  Woody Woo, 2008 WL 2884484, at *1.  The remaining
pooled tips were redistributed to the tipped employees according to a percentage
calculated by comparing the hours worked by an individual server to the hours
worked by all servers.  Id.
    2.    Cumbie and other tipped employees brought collective and class
actions against Woody Woo in federal district court alleging that the employer's
mandatory tip pool that redistributed tips to non-tipped employees violated
section 3(m) of the FLSA and Oregon's wage and hour laws.  Woody Woo filed a
motion to dismiss, arguing that section 3(m)'s provision restricting mandatory
tip pools to those employees who "customarily and regularly receive tips"
applies only when an employer has elected to take a "tip credit" provided under
that section.
B.    The District Court's Decision
    In a July 25, 2008 opinion and order, Magistrate Judge Paul Papak granted
defendants' motion to dismiss, holding that the tipped employees had not stated
a claim for which relief could be granted under the FLSA or state law.  Woody
Woo, Inc., 2008 WL 2884484, at *6.  Judge Papak rejected plaintiffs' argument
that section 3(m)'s provision limiting mandatory tip pools to employees who
"customarily and regularly receive tips" applies even when an employer has not
elected to use the Act's tip credit, and declined to defer to a Wage and Hour
opinion letter that supported that position, on the ground that the letter's
interpretation conflicted with the plain language of the Act.  Id. at *4-5. 
Instead, he interpreted section 3(m)'s tip pooling provision as "only
modif[ying] the tip credit provision; the comment on tip pooling does not
function as an independent provision.  Apart from the tip credit context, the
FLSA remains silent regarding tip
  pooling."  Id. at *3.  Since Woody Woo, in accordance with state law, did not
elect to take the tip credit and thereby did not use the tipped employees' tips
to pay a portion of their minimum wage, Judge Papak concluded that the FLSA's
tip pooling restrictions were not implicated, and Cumbie consequently could not
state a claim for relief under the statute.  Id. at *5.
  Back to Top
SUMMARY OF ARGUMENT
    Section 3(m) of the FLSA (as amended in 1974), which governs the pay of
tipped employees, states that an employer may use a portion of its employees'
tips to take a limited credit against its minimum wage obligation.  Absent such
a credit, the employer must pay the full minimum wage in cash.  Section 3(m)
also permits employers to impose mandatory tip pools by which tips are shared
among employees who customarily and regularly receive them.  As a general
matter, however, tips, as sums presented to tipped employees by a customer "as a
gift or gratuity in recognition of some service performed," 29 C.F.R. 531.52,
are the property of the employee.  See S. Rep. No. 93-690, at p. 42 (1974).
    A few courts, including the district court in this case, have
nevertheless concluded that section 3(m)'s restrictions on an employer's ability
to appropriate its employees' tips (e.g., limiting mandatory tip pools to those
employees who customarily and regularly receive tips) are applicable only when
an employer elects to take a tip credit.  As the Department publicly stated
immediately after the 1974 amendments to the FLSA, and as the majority of courts
have recognized, however, such an interpretation of the Act is contrary to the
legislative history of the 1974 amendments and would lead to absurd results. 
It would permit an employer who did not choose to utilize the tip credit to use
its employees' tips in excess of the limited use authorized in section 3(m) in
order to meet its minimum wage obligations.
    In the present case, Woody Woo did not utilize section 3(m)'s "credit"
against its minimum wage obligations, but paid its tipped employees the full
state minimum wage, which exceeded the federal minimum wage.  Woody Woo,
however, also required its tipped employees to turn over all their tips to an
invalid tip pool, i.e., one that indisputably included employees who did not
"customarily and regularly receive tips."  Therefore, even though Woody Woo was
paying its tipped employees cash wages in excess of the federal minimum wage, it
deprived these employees of their statutory right to receive the full minimum
wage plus all tips they received.  Therefore, the amounts employees were
required to contribute to the invalid tip pool must be subtracted from the cash
wages paid by the employer; if this calculation ultimately shows that Cumbie and
the other tipped employees received a sum that does not equal the full federal
minimum wage plus all tips
  received, Woody Woo did not pay its tipped employees the minimum wage free and
clear, in violation of the FLSA.  See 29 C.F.R. 531.35.
  Back to Top
ARGUMENT
THE DISTRICT COURT ERRED WHEN IT CONCLUDED THAT A TIPPED EMPLOYEE WAS PRECLUDED
FROM CHALLENGING HER EMPLOYER'S INVALID TIP POOL BECAUSE THE EMPLOYER HAD NOT
ELECTED TO TAKE A TIP CREDIT UNDER SECTION 3(m) OF THE FLSA
    1.    The FLSA is a statute of broad remedial purpose.  See
Rutherford Food Corp. v. McComb, 331 U.S. 722, 727 (1947).  Congress enacted
the FLSA to protect workers from "substandard wages and oppressive working
hours."  Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 739
(1981); see 29 U.S.C. 202(a), (b) (congressional finding that "the existence, in
industries engaged in commerce or in the production of goods for commerce, of
labor conditions detrimental to the maintenance of the minimum standard of
living necessary for health, efficiency, and general well-being of workers"
adversely affects commerce, and thus it is the policy, "through the exercise by
Congress of its power to regulate commerce among the several States and with
foreign nations, to correct and as rapidly as practicable to eliminate the
conditions above referred to in such industries without substantially curtailing
employment or earning power").  The
  provisions of the Act are broadly construed "to apply to the furthest reaches
consistent with Congressional direction."  Klem v. County of Santa Clara, Cal.,
208 F.3d 1085, 1089 (9th Cir. 2000) (internal quotation marks omitted); see Real
v. Driscoll Strawberry Assocs., Inc., 603 F.2d 748, 754 (9th Cir. 1979) (courts
define "employer" and "employee" under the FLSA broadly "to effectuate the broad
remedial purposes of the Act").
    2.    Prior to 1966, the compensation of tipped employees was often
determined by an agreement between the employer and employees.  See Usery v.
Emersons Ltd., 1976 WL 1668, *2 (E.D. Va. 1976) (citing, inter alia, Williams v.
Jacksonville Terminal Co., 315 U.S. 386 (1942)), vacated and remanded on other
grounds sub. nom. Marshall v. Emersons Ltd., 593 F.2d 565 (4th Cir. 1979);
Opinion Letter WH-321, 1975 WL 40945 (Apr. 30, 1975).  Tipped employees could
agree, for example, that an employer was only obligated to pay cash wages when
an employee's tips were less than the minimum wage, or that the employee's tips
would be turned over to the employer, who would then use the tips to pay the
minimum wage.  See Emersons, 1976 WL 1668, at *2.
    The 1966 amendments to the FLSA expanded the coverage of the Act to
include restaurants and hotels, thereby extending minimum wage and overtime
protections to a large number of tipped employees.  See Emersons, 1976 WL 1668,
at *2.  Congress that same year created a "tip credit" provision in section
3(m) of the Act, which permitted these newly covered employers to use a limited
portion of their employees' tips as a credit against their minimum wage
obligations.  See id.[3]
    There is some question, reflected in the legislative history to the 1966
amendments, as to whether Congress intended the tip credit provision to abolish
all tip-sharing agreements between employers and employees.  Compare S. Rep.
No. 1487 (1966), as reprinted in 1966 U.S.C.C.A.N. 3002, 3014 (suggesting that
such agreements could continue) with 112 Cong. Rec. 11362-63 (May 25, 1966)
(statement of Congressman Dent) ("[L]et us not say from now on when you go into
a restaurant that it is your job or your duty not just alone to pay for your
meal but to pay the full wages of the employees of that institution.  I do not
believe any Member of Congress can really seriously consider this kind of
amendment.").  The Department's tip credit regulations promulgated in 1967
indicate that the Department believed that Congress intended in 1966 to retain
such agreements.  Thus, the tip credit regulations, which are still in place
today, refer in several
  instances to employment agreements providing that tips are to be treated as the
property of the employer, see, e.g., 29 C.F.R. 531.59, and imply that such
agreements are valid.  See 29 C.F.R. 531.52 ("In the absence of an agreement to
the contrary between the recipient and a third party, a tip becomes the property
of the person in recognition of whose service it is presented by the
customer."); 29 C.F.R. 531.55(a) ("[W]here the employment agreement is such that
amounts presented by customers as tips belong to the employer and must be
credited or turned over to him, the employee is in effect collecting for his
employer additional income from the operations of the latter's establishment.");
see also 29 C.F.R. 531.55(b); 29 C.F.R. 531.59.
  Back to Top
    3.    In 1974, Congress again amended section 3(m) of the Act to
require (1) that an employer notify its employees if it takes the tip credit;
(2) that the employees retain all tips; and (3) authorizing tip pools among
employees who "customarily and regularly receive tips."  See Pub. L. No.
93-259, §13, 88 Stat. 55 (1974).[4]  The legislative history to the 1974
amendments indicates that Congress intended these changes to section 3(m) to
make clear its original intent (in 1966) to prohibit all agreements whereby an
employer and employee could agree that the tips were the property of the
employer, or to use the employees' tips toward the employer's minimum wage
obligation except as explicitly allowed under section 3(m).  See S. Rep. No.
93-690, at 43 (1974).  In other words, the 1974 amendments were intended to
clarify that tips are a gratuity offered by customers for services rendered, and
that section 3(m)'s tip provision provided the
  only permissible uses of an employees' tips.  See id.
    Significantly, in considering the 1974 amendments, Congress referred to
the Department's definition of a tip as "a sum presented by a customer as a gift
or gratuity" (29 C.F.R. 531.52).  S. Rep. No. 96-690, at 42-43 (1974). 
Congress noted that because tips belong to the employee, there is "a serious
legal question as to whether the employer should benefit from tips to the extent
that employees are paid less than the basic minimum wage because the employees
are able to supplement their wages by special services which bring them tips." 
Id.  The legislative history to the 1974 amendments further notes that the tip
retention clause, in particular, was "added to make clear the original
Congressional intent that an employer could not use the tips of a 'tipped
employee' to satisfy more than 50 percent of the Act's applicable minimum
wage."  S. Rep. No. 93-690, at 43 (1974).  Implicit in the 50 percent
limitation on an employer's tip credit is the
  understanding that the starting point must be that tips are the property of the
employee.  If tips are not the property of the employee, Congress would not
have needed to specify that an employer is permitted to credit its employees'
tips only in certain prescribed circumstances.  Thus, the clear intent of
Congress in 1974 was to require an employer under section 3(m) either to take a
credit against an employee's tips of up to the prescribed statutory
differential, or to pay the entire minimum wage directly; under either scenario,
the employee is required to retain all tips (except for contributions to a valid
tip pool).
    4.    Immediately after the 1974 amendments, the Department
acknowledged that Congress had strictly curtailed an employer's ability to take
control of its employees' tips, stating that "[t]he amendments to section 3(m)
of the Act would have no meaning or effect unless they prohibit agreements under
which tips are credited or turned over to the employer for use by the employer
in satisfying the monetary requirements of the Act."  Opinion Letter, June 21,
1974 (see Addendum); see Opinion Letter WH-310, 1975 WL 40934 (Feb. 18, 1975)
(same).[5]  The Department indicated that the 1974 amendments invalidated the
broader appropriation of employees' tips allowed by the Department's
regulations.  See id.  It stated publicly immediately after the 1974
amendments that its tip credit regulations were outdated, and indicated that new
regulations were forthcoming.  See Opinion Letter WH-310, 1975 WL 40934, at *1
(Feb. 18, 1975) ("The [tip credit
  regulations] were issued pursuant to the Act as it was before the 1974
amendments, and have no effect to the extent that they are in conflict with the
amended Act."); Opinion Letter WH-321, 1975 WL 40945 (April 30, 1975); see also
Opinion Letter FLSA 2005-31, 2005 WL 3308602, at *3 n.1 (Sept. 2, 2005); Davis
v. B & S, Inc., 38 F. Supp. 2d 707, 714 n.10 (N.D. Ind. 1998) (recognizing that
the Department's tip credit regulations do not reflect 1974 amendments).
    The Department has not promulgated a revision to these outdated
regulations.  Although the Department indicated its intent to update its tip
regulations to reflect the 1974 amendments to section 3(m) again last year in a
Notice of Proposed Rulemaking, a Final Rule was not published.  See 73 Fed.
Reg. 43654 (July 28, 2008).  Nevertheless, Wage and Hour's longstanding
position, as stated in a number of opinion letters and in its Field Operations
Handbook ("FOH"), is that the 1974 Amendments, by setting forth specific
limitations on an employer's ability to credit its employees' tips, establish
that tips otherwise remain the property of the employee.  See, e.g., Opinion
Letter, 2001 WL 1558958, at *1 (April 19, 2001) ("Since the passage of the 1974
Amendments to the FLSA, it has been clear that tips are the property of the
employee . . . .").  Accordingly, Wage and Hour has stated that an employer is
prohibited from requiring his tipped
  employees (by agreement or otherwise) to turn over all their tips and then use
a portion of the tips to pay the required minimum wage.  See, e.g., Opinion
Letter, June 21, 1974 ("[W]here an employer acquires the tips of a tipped
employee in contravention of section 3(m) and uses such tips to pay the
employee, the employee has in effect waived his rights to the minimum wage.");
Opinion Letter WH-386, 1976 WL 41739, at *4 (July 12, 1976) ("[T]he law forbids
any arrangement whereby any part of the tips of a tipped employee belong to the
employer or are retained by the employer."); FOH, ¶30d01(a) ("[T]he specific
language added to Sec. 3(m) reinforces the intent of Congress that . . . the
employer and employee cannot agree to . . . waive [a tipped] employee's right to
retain all tips received.").  Similarly, Wage and Hour has viewed a "tip back"
agreement, where the employee gives all his or her tips to the employer for
application toward the employee's
  minimum wage, as a violation of the requirement in 29 C.F.R. 531.35 that
employees receive the full minimum wage "free and clear."  See, e.g., Opinion
Letter WH-536, 1989 WL 610348 (Oct. 26, 1989).  Therefore, any references in
the regulations to employer-employee agreements under which tips are considered
to be the property of the employer are not valid after the 1974 amendments.
  Back to Top
    5.    The Department's interpretation that the 1974 tip credit
amendments strictly limit an employer's ability to appropriate its employees'
tips is supported by several decisions, including in cases brought by the
Department.  Those decisions hold that, pursuant to the 1974 amendments to
section 3(m), agreements to pay an employee's "cash wage" (after taking a
permissible tip credit) out of all or part of his or her tips are invalid
because tips are the property of the employee, and an employer's use of those
tips is restricted to the permitted uses specifically enumerated in section
3(m).  Thus, in Martin v. Tango's Restaurant, Inc., 969 F.2d 1319, 1322 (1992),
the First Circuit stated that "[a] stranger to the FLSA might suppose that, in
determining an employer's minimum wage obligations, the tips regularly received
and retained by an employee either would be treated as wages paid by the
employer or, in the alternative, would be wholly
  ignored.  Instead, in a legislative compromise, Congress chose to allow
employers a partial tip credit if, but only if, certain conditions are met." 
And, in Richard v. Marriott Corp., 549 F.2d 303, 304-05 (4th Cir.), cert.
denied, 433 U.S. 915 (1977), the court invalidated a scheme where a cash wage
was paid by the employer only when the employees' tips did not equal the minimum
wage.  See Wright v. U-Let-Us Skycap Services, Inc., 648 F. Supp. 1216, 1217-18
(D. Colo. 1986) (invalidates scheme where employees were paid minimum wage after
turning all tips over to the employer); Tavern Talent, 1986 WL 32746, at *5
(citing S. Rep. 93-690, at 43 (1974), court invalidates "tip-back" scheme where
employees paid cash wage out of their own tips); Emersons, 1976 WL 1668, at *4
(the 1974 amendments make clear that employees cannot agree to permit an
employer to satisfy its full minimum wage obligation from the employees' tips);
cf. Chao v. FOSSCO, Inc., 2006
  WL 1041353 (W.D. Mo. 2006) (holding that since tips are the property of the
employee, they cannot be added to salary computations for purposes of
determining whether the employees are exempt from the FLSA’s overtime
requirements); but see Cooper v. Thomason, 2007 WL 306311, at *2 (D. Or. 2007)
("Tips are only the property of the employee if there is no agreement to the
contrary."); Platek v. Duquesne Club, 961 F. Supp. 835, 839 (W.D. Pa. 1995)
("[T]ips are only the property of an employee absent an agreement to the
contrary."), aff’d without opinion, 107 F.3d 863 (3d Cir.) (Table), cert.
denied, 522 U.S. 934 (1997).  Thus, the clear intent of Congress, reflected in
the Department's consistent position dating from the enactment of the 1974
amendments and the weight of judicial authority, is that tips belong to the
employee, and that no agreement between the employer and its employees may
override this fundamental entitlement.
    6.    Despite the fact that section 3(m) provides the only method by
which an employer may use tips received by an employee to satisfy the employer's
minimum wage obligation, several district courts, including the court in Woody
Woo, have concluded that the section 3(m) requirement that an employee retain
his tips and the related limitation on the distribution of money from tip pools
to employees who "customarily and regularly receive tips" are applicable only
when an employer "claims" a tip credit.  See Woody Woo, 2008 WL 2884484, at *5
(citing Cooper, 2007 WL 306311, and Platek, 961 F. Supp. at 834);[6] see also
Chan v. Triple 8 Palace, Inc., 2006 WL 851749, at *15 (S.D.N.Y. 2006) (stating
in dictum that plaintiffs could prevail under the FLSA for tip violations "only
if defendants have relied on the tip credit").  This cramped reading of section
3(m), however, is contrary to a more sensible reading of the provision that
accords with
  congressional intent and the Department's longstanding interpretation of the
1974 amendments.
    Thus, while section 3(m) sets out certain prerequisites for the use of
the tip credit (like notice to the employee), it does not state that tips no
longer are the property of the employee if the employer disclaims the tip
credit.  In fact, it makes no sense to allow an employer to disclaim the tip
credit, yet require the employee to forfeit all of his tips, through an invalid
tip pool or otherwise.  In such a situation, the reasoning of the district
court would allow the employer to use the employee's tips to meet its entire
minimum wage obligation or supplement the wages of non-tipped employees. 
Indeed, if an employer is able to take its employees' tips to pay the full
minimum wage, it would have no reason to elect the tip credit.  See generally
Nixon v. Missouri Municipal League, 541 U.S. 125, 128 (2004) (a statute should
not be construed in a manner that leads to absurd results); Whirlpool Corp. v.
Marshall, 445 U.S. 1, 11-13 (1980)
  (upholding the Secretary's regulation interpreting the Occupational Safety and
Health Act because that regulation is consonant with the purposes of the statute
and "complement[s] its remedial scheme").
    This result would stand the amendment to section 3(m) "on its head" and
would mean it has "accomplished nothing."  Emersons, 1976 WL 1668, at *4 (court
rejected the employer's argument that by not "using" the tip credit, it was free
to meet its entire minimum wage obligation to an employee out of tips).  The
Tenth Circuit in Doty v. Elias, 733 F.2d 720, 724 (1984), similarly concluded
that an interpretation of the FLSA that permits an employer to use all of its
employees' tips to pay the minimum wage "does violence" to section 3(m), "would
render much of that section superfluous[,]" and is contrary to Congress' intent
to permit employers to use only a limited percentage of employees' tips against
their minimum wage obligations.  And the Fourth Circuit observed, in the
context of determining back wages owed when the employer did not take the tip
credit but used its employees' tips to pay the entire minimum wage, that the
fact that section 3(m)
  permits an employer to take a 50 percent credit toward an its minimum wage
obligation makes "[t]he corollary . . . obvious and unavoidable: if the employer
does not follow the command of the statute, he gets no credit."  Marriott
Corp., 549 F.2d at 305.  Finally, in Tavern Talent, 1986 WL 32746, at *4-5, the
district court concluded that an employer violated section 3(m) even when it
paid its employees the full minimum wage, because it required its tipped
employees to "tip back" a portion of their tips; in the words of the court,
"[i]f the employer does not choose to pay according to the method described in
3(m) for tipped employees then he must pay the full minimum wage as prescribed
by the Act." (Citation omitted.).  The Department's opinion letters also have
consistently stated that employees' tips cannot be used to pay the employees'
minimum wage if the employer does not choose to use section 3(m).  See, e.g.,
Opinion Letter WH-536, 1989 WL
  610348 (Oct. 26, 1989); Opinion Letter WH-321, 1975 WL 40945, at *2 (April 30,
1975).
  Back to Top
    7.    The district court in Woody Woo further erred when it
misinterpreted and declined to accord Skidmore deference to a 1989 opinion
letter signed by the Wage and Hour Administrator that applies the agency's
position on the application of section 3(m) to facts almost identical to those
presented in this case.  See Opinion Letter WH-536, 1989 WL 610348 (Oct. 26,
1989).  The 1989 letter addresses a situation where the employer has not
elected to take the tip credit, and has instituted an invalid tip pool that
includes employees who do not customarily and regularly receive tips.  The
district court in Woody Woo understood the opinion letter to say that the
Department interprets the FLSA to prohibit tip pooling altogether, and declined
to accord the letter deference because such an interpretation would directly
conflict with section 3(m)'s specific authorization of tip pooling.  See 2008
WL 2884484, at *4 ("Under [the opinion letter's
  rationale], all tip pooling would be per se invalid because tip pooling by its
very nature entails some deprivation of tips as a result of redistribution.").
    The district court's incomplete reading of the 1989 letter is faulty. 
While there is no question after the 1974 amendments that tips are the property
of the employee, see supra, the Department recognizes that an employer can
redistribute a portion of its employees' tips through a mandatory tip pool,
provided that the tip pool is limited to employees who customarily and regularly
receive tips.  See, e.g., Opinion Letter, FLSA 2006-21, 2006 WL 1910966, at *1
(June 9, 2006) ("[E]mployees must retain all of their tips, except in the case
of valid tip pool arrangements."); FOH ¶30d01(a) ("Pursuant to Sec 3(m), all
tips received . . . by a 'tipped employee' must be retained by the employee
except to the extent that there is a valid pooling arrangement."); FOH
¶30d04(a) ("The requirement that an employee must retain all tips does not
preclude tip-splitting or pooling arrangements among employees who customarily
and regularly receive tips.").  Thus,
  employees who contribute to a valid tip pool (comprised of "tipped" employees)
are not "considered to have rebated the pooled tips originally received by them"
to the employer.  Opinion Letter WH 536, 1989 WL 610348, at *3.  However,
mandatory contributions to an invalid tip pool -– i.e., among employees who do
not customarily and regularly receive tips -– effectively require an employee
to "contribute part of his or her property to the employer or to other persons
for the benefit of the employer, with the result that the employee [potentially]
would not have received the minimum wage 'free and clear,' as required by
section 531.35 of [29 C.F.R.]."  Id. at *2 (citations omitted).  As Wage and
Hour has explained, "[a] tip is given to the employee, not the employer.  Where
an employer acquires the tips of a tipped employee in contravention of section
3(m) [through, for example, an invalid tip pool] and uses such tips to pay the
employee, the
  employee has in effect waived his rights to the minimum wage [in contravention
of the Act]."  Opinion Letter WH-489, 1978 WL 51435 (Nov. 22, 1978).
    8.    Although mandatory contributions to invalid tip pools
unquestionably violate the principle articulated in section 3(m) that tips are
the property of the employee, the Secretary's ability to enforce section 3(m) is
limited to instances where violations result in minimum wage or overtime
violations.  See 29 U.S.C. 216(c) (authorizes actions by the Secretary to
enforce the Act's minimum wage and overtime provisions); 29 U.S.C. 217
(authorizing DOL injunctive proceedings to restrain violations of the Act's
minimum wage, overtime, recordkeeping and child labor provisions).  Thus, the
1989 opinion letter explains that when an employee's required contribution to an
invalid tip pool is so great that he or she does not receive all of his or her
tips plus the required minimum wage, the "employee who has originally received
tips will be considered to have contributed all such improperly redistributed
tips to the employer," resulting in a minimum
  wage violation.  Opinion Letter WH-536, 1989 WL 610348, at *3; compare Opinion
Letter FLSA 2006-21, 2006 WL 1910966 (June 9, 2006) (explaining that no FLSA
action lies against an employer who makes impermissible deductions from cash
wages paid if those wages are in excess of the minimum wage and the deductions
do not reduce the employee's pay below the minimum wage).
    In the current case, Woody Woo paid its employees the full state Oregon
minimum wage, which at all times relevant to this litigation exceeded the
federal minimum wage by nearly $2.00 an hour.  Therefore, Woody Woo could have
made "deductions" (for purposes of this case, mandatory contributions to an
invalid tip pool) of approximately $2.00 an hour, since those deductions would
not reduce the tipped employees' direct wage payment below the federal minimum
wage.[7]  Since Woody Woo required its tipped employees to contribute all their
tips to the tip pool, however, and redistributed 55 to 70 percent of those tips
to non-tipped employees, it is likely that Woody Woo's "deduction" exceeded
$2.00 an hour, so that the tipped employees did not receive the federal minimum
wage plus all tips received.  See, e.g., appellant's opening brief at p. 9
("[N]o server ends up with an amount equal to the federal minimum wage plus all
tips given to them by their
  customers.").
    Thus, a Woody Woo employee who received $10.00 an hour in tips, for
example, was required to contribute all those tips to an invalid tip pool. 
Woody Woo redistributed 55 to 70 percent of those tips to employees who did not
customarily and regularly receive tips, and returned the remaining 30 to 45
percent to the tipped employees.  If a tipped employee received 30 percent, or
$3.00, of his or her tips back from the tip pool, plus $7.95 (the Oregon minimum
wage in effect when the complaint was filed) in cash wages, he or she would have
received $10.95.  This amount is less than the total of the employee's tips
received ($10.00) plus the federal minimum wage that was in effect for at least
one year of the employee's employment ($5.85), $15.85.  Therefore, in this
circumstance, Woody Woo would be in violation of the federal minimum wage.  The
employee would be entitled to recover $4.90 per hour, which is the difference
between $15.85, the total
  of all tips received plus the federal minimum wage, and $10.95, the amount
received after the tip pool distribution.
    In sum, if the tipped employees did not receive the full federal minimum
wage plus all tips received, they cannot be deemed under federal law to have
received the minimum wage "free and clear," and the money diverted to the
invalid tip pool is an improper deduction from wages that violates section 6 of
the Act.
  Back to Top
CONCLUSION
    For the foregoing reasons, this Court should reverse the magistrate
judge's decision dismissing Cumbie's complaint.
Respectfully submitted,
CAROL A. DE DEO
Deputy Solicitor for National Operations
STEVEN J. MANDEL
Associate Solicitor
PAUL L. FRIEDEN
Counsel for Appellate Litigation
s/ Maria Van Buren
MARIA VAN BUREN
Senior Attorney
U.S. Department of Labor
Office of the Solicitor
Room N-2716
200 Constitution Avenue, NW
Washington, DC 20210
(202) 693-5555
CERTIFICATE OF COMPLIANCE PURSUANT TO Fed. R. App. P. 29(d) and Circuit Rule
32-1 for Case No. 07-35633
    I certify that this amicus brief complies with the type-volume
limitations set forth in Federal Rules of Appellate Procedure 29(d) and Ninth
Circuit Rule 32-1.  This brief was prepared using Microsoft Office Word
utilizing Courier New 12 point, a monospaced font, and contains 6,873 words
(including footnotes).
s/ Maria Van Buren
MARIA VAN BUREN
Senior Attorney
CERTIFICATE OF SERVICE
    I hereby certify that on April 29, 2009, I electronically filed the
foregoing with the Clerk of the Court for the United States Court of Appeals for
the Ninth Circuit by using the appellate CM/ECF system.
    I certify that all participants in the case are registered CM/ECF users
and that service will be accomplished by the appellate CM/ECF system.
s/ Maria Van Buren 
MARIA VAN BUREN
Senior Attorney
United States Department of Labor
Office of the Solicitor
Room N2716
200 Constitution Ave., NW
Washington, DC 20210
(202) 693-5555
  Back to Top



Footnotes
[1]    As the magistrate judge noted in his opinion, although the complaint
did not specify the wages paid, Cumbie clarified at argument that she was paid
at or above the Oregon minimum wage at all times relative to the complaint. 
See Woody Woo, Inc., 2008 WL 2884484, at *1.  For the three years prior to the
filing of the complaint on April 25, 2008, the Oregon minimum wage ranged from
$7.25 to $7.95 per hour.  The federal minimum wage over this same period of
time ranged from $5.15 to $5.85 per hour.  See, e.g., State of Oregon's
Technical Assistance for Employers,
http://www.oregon.gov/BOLI/TA/T_FAQ_Min-wage2008.shtml.  Therefore, for the
period covered by the complaint, Woody Woo paid Cumbie close to $2.00 an hour
above the federal minimum wage.
[2]    "[U]nder [Federal] Rule [of Civil Procedure] 12(b)(6), allegations of
material fact are taken as true and construed in the light most favorable to the
plaintiff."  William O. Gilley Enterprises, Inc. v. Atlantic Richfield Co., --
F.3d --, 2009 WL 878979, at *8 (9th Cir. 2009).
[3]    After the 1966 amendments, section 3(m) of the FLSA read as follows:
In determining the wage of a tipped employee, the amount paid such employee by
his employer shall be deemed to be increased on account of tips by an amount
determined by the employer, but not by an amount in excess of 50 per centum of
the applicable minimum wage rate, except that in the case of an employee who
(either himself or acting through his representative) shows to the satisfaction
of the Secretary that the actual amount of tips received by him was less than
the amount determined by the employer as the amount by which the wage paid him
was deemed to be increased under this sentence, the amount paid such employee by
his employer shall be deemed to have been increased by such lesser amount.
Pub. L. No. 89-601, § 101(a), 80 Stat. 830 (1966).
[4]    After the 1974 amendments, the tip credit provisions of section 3(m)
read as follows:
In determining the wage of a tipped employee, the amount paid such employee by
his employer shall be deemed to be increased on account of tips by an amount
determined by the employer, but not by an amount in excess of 50 per centum of
the applicable minimum wage rate, except that the amount of the increase on
account of tips determined by the employer may not exceed the value of tips
actually received by the employee.  The previous sentence shall not apply with
respect to any tipped employee unless (1) such employee has been informed by the
employer of the provisions of this subsection and (2) all tips received by such
employee have been retained by the employee, except that this subsection shall
not be construed to prohibit the pooling of tips among employees who customarily
and regularly receive tips.
Pub. L. No. 93-259, § 13, 88 Stat. 55 (1974) (emphasis added).  This
underlined language from the 1974 amendments to section 3(m) is essentially the
same as the current version of the law.  Although section 3(m)'s tip credit
provision has been amended since 1974 on several occasions -- in 1977 (Pub. L.
No. 95-151, § 3(b), 91 Stat. 1245); 1989 (Pub. L. No. 101-157, § 5, 103 Stat.
938); and 1996 (Pub. L. No. 104-188, § 2105(b), 110 Stat. 1755) -- these
amendments changed only the applicable percentage of employees' tips that could
be taken as a tip credit against an employer's cash wage obligations.  The cash
wage required to be paid by an employer electing the tip credit was "frozen" by
the 1996 amendments to section 3(m) at $2.13 an hour.
[5]    The Department's interpretation of section 3(m), as reflected in its
opinion letters, the FOH, and this amicus brief, is entitled to deference under
Skidmore v. Swift, 323 U.S. 134 (1944).  See Federal Exp. Corp. v. Holowecki,
128 S. Ct. 1147, 1151 (2008) (deference for EEOC's statutory interpretation
embodied in policy statements contained in compliance manual and internal
directives).  Indeed, in Donovan v. Tavern Talent and Placements, Inc., 1986 WL
32746, at *5 (D. Colo. 1986), the court rejected the defendant's position that
the Department's tip credit regulations permitted employers and employees to
agree that tips were the property of the employer on the ground that a number
of opinion letters issued by the Wage and Hour Administrator immediately after
the 1974 FLSA amendments clearly "repudiated earlier opinions that sanctioned
agreements between employers and employees to accept tips in lieu of
wages," and put employers on notice
  that "tips had to be retained by employees as required by the Act and
henceforth any agreements remitting tips to employers were invalid."  Since
the Department had "maintained this interpretation of the statute for over ten
years," the court concluded, it was "obligated to give great weight" to the
position articulated in the opinion letters.  Id.
[6]    The magistrate judge accepted both plaintiff's contention that under
section 3(m), mandatory tip pools can include only those employees who
"customarily and regularly receive tips," and the Department's guidance on this
subject that specifically excludes from tip pools employees such as cooks and
dishwashers.  Woody Woo, 1989 WL 2884484, at *3 (citing, inter alia, FOH
¶30d04(c)).
[7]    Under section 3(m), the "wage" of a tipped employee equals the sum of
the cash wage paid by the employer and the amount that can permissibly be
claimed as a tip credit.  The amount of tips the employee receives in excess of
the tip credit are not considered "wages" paid by the employer and any
"deductions" from the employee's tips made by the employer would result in a
violation of the employer's minimum wage obligation.  If, as in this case,
however, the employer paid the employee a direct wage in excess of the minimum
wage, the employer would be able to make deductions so long as they did not
reduce the direct wage payment below the minimum wage.  In such a situation,
the deduction would be viewed as coming from the employer's wage payment that
exceeds the minimum wage.
 
 
 




[Non-text portions of this message have been removed]

Tip pooling a hot topic in NYC
By Elissa  Elan - Nations Restaurant News 10/30/09
http://www.nrn.com:80/breakingNews.aspx?id=375226&utm_source=MagnetMail&utm_medi\
um=email&utm_term=tips@waitersworld.com&utm_content=NRN-News-NRNam-11-02-09_verB\
&utm_campaign=Nov.%202,%202009%20-%20Chains%20shout%20message%20of%20quality%20o\
ver%20the%20din%20of%20discount%20battles
 
NEW YORK (Oct. 30, 2009) Proper record keeping of employees work times and a
defined position on tip pooling procedures can help protect restaurateurs from a
variety of lawsuits that typically add costs and stress to already challenged
operations, industry observers said in Manhattan this week.
 
A town hall meeting, entitled “How to Protect Your Restaurant,” was held in
response to the myriad lawsuits that have been filed against restaurateurs in
New York City, as well as proposed changes to current labor laws. Like
California and some other areas nationwide, New York City’s labor laws are
onerous, and many operators have fallen prey to class-action suits and other
legal hiccups, which can be costly to both a business’ fiscal health and
general community goodwill.
 
Panelists for the meeting, which was sponsored by Culintro LLC, a restaurant
industry membership organization, included Carolyn Richmond of the law firm Fox
Rothschild LLP; Will Regan, chief executive of 3Sixty Hospitality, a back-office
management consultancy; and Josh Ozersky, an editor for Citysearch New York.
They focused on how operators can best avoid litigation.
 
Regan and Richmond discussed the problems associated with tip pooling, which is
an issue Richmond called “the big pink elephant in the room.”
 
While tip sharing is not illegal in New York State, the more difficult issue is
getting employees to pool their tips with all employees instead of a select few,
or those at the front of the house. Wage amendments are afoot in New York, and a
special committee formed by the labor commissioner has been meeting this year to
offer suggestions on revising the current labor laws. Richmond was one of many
industry experts to offer testimony at the committee’s public hearing last
summer.
“I think this is going to change in the next three months,” she said. “The
state probably will allow mandatory pooling.”
 
According to Regan, class-action wage suits are another area for restaurateurs
to closely follow. It has only been during the last 15 years that the majority
of class-action suits have been filed.
 
“These cases are easy. Attorneys are not spending 10 years trying to put these
cases together,” Regan said. “They’ve realized that these types of cases
are really lucrative. The plaintiff may only get a few thousand dollars, but the
attorneys get one-third [of the judgment]. The rest is divided up by the
hundreds of employees [involved in the suit].”
 
Richmond agreed, saying that it is typically easy to determine whether a
restaurant operator has violated the wage laws. “It’s not a ‘he said, she
said’ [situation] like it is with sexual harassment,” she noted.
 
Richmond noted that the largest area of legal activity now included overtime,
tip and service charge violations.
 
To help defend restaurant operations, it is essential for restaurateurs to keep
proper shift records, she said.
 
“Teach your employees how to properly clock in and clock out,” she noted.
“You have to get the employees used to using a time clock; it’s a whole lot
cheaper than paying me and the other lawyers.”
 
Contact Elissa Elan at eelan@....




[Non-text portions of this message have been removed]

Seattle diners worst tippers in the United States.
Puget Sound Business Journal (Seattle) 10/22/09
http://seattle.bizjournals.com/seattle/stories/2009/10/19/daily39.html?ed=2009-1\
0-22&ana=e_du_pub#

Zagat’s 2010 America’s Top Restaurants survey of 45 markets showed that
Seattle was tied with Hawaii for the stingiest tippers, giving just 18.4
percent.
The survey of more than 145,000 diners shared their opinions about dining and
how the economy affected the restaurant industry. St. Louis and Philadelphia
diners are the nation’s best tippers, coming in at 19.6 percent.




[Non-text portions of this message have been removed]

Colorado wages set to fall, questions emerge for tipped workers
By Alan J.  Liddle  - Nations Restaurant News
http://www.nrn.com/breakingNews.aspx?id=374456&utm_source=MagnetMail&utm_medium=\
email&utm_term=tips@waitersworld.com&utm_content=NRN-News-Independent%20Insights\
%2010-21-09&utm_campaign=Seattle's%20slew%20of%20new%20restaurants%20thrills%20d\
iners
DENVER (Oct. 16, 2009) Colorado employers may reduce the pay of non-tipped
minimum-wage employees by three pennies an hour and cut the pay of tipped
workers by at least that amount beginning Jan. 1, according to the Colorado
Department of Labor and Employment and state restaurant association officials.
Yet, there is some uncertainty as to how much restaurateurs will be able to
shave from the minimum wage paid to tipped employees.
The wage reduction is based on a state constitutional amendment passed by voters
in 2006 that calls for the minimum wage to be adjusted annually based on changes
in the cost of living. Until now, inflation has pushed Colorado’s pay floor
higher, but that is about to change.
Colorado’s pending wage decrease is believed to be the first among the 10
states that have mechanisms to adjust minimum-wage rates annually based on
inflation indexes. The other states with such mechanisms are Arizona, Florida,
Missouri, Montana, Nevada, Ohio, Oregon, Vermont and Washington.
According to a recent Colorado Department of Labor and Employment notice,
beginning Jan. 1, the state’s minimum wage will decrease from $7.28 an hour to
$7.24 for non-tipped employees and from $4.26 an hour to $4.22 for workers
receiving gratuities.
Most Colorado employers, however, will not get the full benefit of the four-cent
reduction in wages for non-tipped employees because they will have to meet the
current federal minimum wage of $7.25 an hour.
And there is some uncertainty as to how much restaurateurs will be able to shave
from the minimum wage paid to tipped employees, according to Peter Meersman,
chief executive and president of the Colorado Restaurant Association. Meersman
said a provision in Colorado law holds that the minimum wage for tipped
employees will be $3.02 an hour less than that paid to non-tipped workers.
What’s unclear, he indicated, is whether in 2010 that $3.02 hourly tip credit
will be applied against the new state minimum wage of $7.24 an hour, resulting
in a $4.22 hourly minimum wage for tipped workers, or against the federal
minimum wage of $7.25, yielding a $4.23 an hour pay floor for staffers who
receive gratuities. Meersman said the CRA is seeking to have the matter
clarified by state officials.
The Colorado reduction is based on a 0.6-pecent reduction in the
Denver-Boulder-Greeley Consumer Price Index between the first half of 2008 and
the first half of 2009.
The restaurant association’s Meersman said the use of that heavily urban CPI
to set statewide wages is controversial. He said a lawsuit by rural
restaurateurs filed last year to force the state to create a new consumer price
index that better reflects the economies of their areas is still in play. The
Denver District Court hearing the matter did not grant the operators’ request
to stay the 2009 wage hike of 3.7 percent based on the disputed CPI, but neither
has it granted a state motion to dismiss the case, the CRA executive noted.
Some advocacy groups for the working poor have urged employers not to take the
reduction. Meersman said the CRA will explain to members the changes in the
wage law for the coming year, but would not make a recommendation as to whether
they should take the reduction or maintain current wage levels.
A hearing to allow public comment about the proposed order to lower the wage in
accordance with the inflation-adjuster mechanism is set for Nov. 6 in Division
of Labor chambers in Denver.
Contact Alan J. Liddle at aliddle@....


Read more:
http://www.nrn.com:80/breakingNews.aspx?id=374456&utm_source=MagnetMail&utm_medi\
um=email&utm_term=tips@waitersworld.com&utm_content=NRN-News-Independent%20Insig\
hts%2010-21-09&utm_campaign=Seattle's%20slew%20of%20new%20restaurants%20thrills%\
20diners#ixzz0UgRWb8Cg




[Non-text portions of this message have been removed]

Oriental Forest restaurant owners ordered to pay $2 million in back wages
By Barton Deiters | The Grand Rapids Press ��October 20, 2009
http://www.mlive.com:80/news/grand-rapids/index.ssf/2009/10/post_62.html
GRAND RAPIDS -- A Grandville couple and their business partner, convicted of
cheating the state out of sales tax payments, have been ordered to pay at least
129 workers more than $2 million in minimum wage and overtime compensation,
court documents show.
Li Jin Yang and her husband, Dong Lin, were investigated by the U.S. Department
of Labor, alleging they did not pay a minimum of $5.15 per hour to staffers at
five Oriental Forest Chinese buffet restaurants across West Michigan during a
three-year span, beginning in February 2004.
The couple and their business partner, Chang Kong Ni, of Pontiac, committed the
same violation at two restaurants on the east side of the state, according to
the order filed U.S. District Court.
Federal Judge Janet Neff found Yang, Lin and Ni cheated workers out of pay for
work-weeks longer than 40 hours at the standard rate.
Payments to workers include damages assessed for the breach of contract between
employer and employee, with some workers getting as much as $96,000. Others will
receive less than $1,000.
This is not the first time the restaurateurs have been accused of not living up
to their obligations. Each of the three pleaded no contest to failing to pay
taxes and agreed to repay the state $580,000 over a five-year period after state
authorities raided Oriental Forest restaurants in June 2005.
Yang will serve an 11-month sentence once Lin completes his one-year term, an
allowance so the couple can care for children and run their business. Ni was
ordered to a four-month jail sentence.
Authorities started the tax probe after a state police trooper based in Newaygo
claimed a cashier did not issue a receipt to a customer who paid with cash --
instead, the cash was stuffed into the restaurant's till.
Investigators said sales at restaurants were not reported to the state
Department of Treasury, a tactic designed to avoid tax payments. The owners
still kept track of the sales on paper, which were used by the government to
build its case.
In the labor complaint, the federal government says the restaurant owners did
not keep adequate and accurate records of employees, their wages and hours
worked.
Violations occurred in five West Michigan locations, including Grand Rapids,
Plainfield Township, Wyoming, Grandville and Newaygo. The Plainfield and Wyoming
restaurants continue to operate.




[Non-text portions of this message have been removed]

How to create a Facebook Fan Page for your Restaurant?
October 9th, 2009 ·
http://www.marketingrestaurantonline.com/2009/10/09/how-to-create-a-facebook-fan\
-page-for-your-restaurant/


Facebook is no doubt one of the most popular social networking site in the world
with over 300 million users by now. Restaurant businesses can not afford  to
not care about Facebook and not make it a part of it’s marketing strategy if
it really wants to win in this new age of social media we are entering into.
Lots of big brand chain restaurants like McDonald’s, Chick-Fil-A, Pizzahut and
many others have started building a great brand with millions of fans. But I
have yet to see small restaurants take advantage of marketing opportunity that
Facebook offers. I will try to explain how to set up a Facebook Fan Page for
your restaurant step by step.
VIDEO- For those who are more visual learner I have included the tutorial video
prepared by Matthew Loop. Though the video shows the steps how to create
Facebook Fan Page with the example of his Chiropractor Service, it is applicable
to any businesses including restaurants. So please feel free to watch the video
to get a visual idea on different steps. However once you watch the video and
get an idea please follow the steps below that I have written. That way it is
easier for you and not confusing while you are creating your Facebook Fan Page
for your restaurant.
Step 1. Login to your Facebook
You can create your Facebook Fan Page for your restaurant though your personal
Facebook account. So the first thing you have to do is login  to your Facebook.
Input your username and password and log in.
Step 2. Locate Advertising section on the very bottom.

Once you login to your Facebook account, scroll down to the very bottom and you
will see a link that says “Advertising”. Click the link and it will take you
to the landing page of Advertising. You will also see an orange color flag icon
left to “Pages”. Now Click again the Pages option. It will then take you to
the Facebook Pages section. To the far right you will see a green button that
says “Create a Page”. Click the green button. It will then take you the
actual page where you can start building the Fan Page.
Step 3-Create your Facebook Fan Page

While creating a new Facebook Page, it will prompt you to select the category.
Select Local and then “Restaurant” as your sub category. Then it will ask
you the name of the restaurant. Input the name of your restaurant. Be careful
with this one. Once you choose the name you can not change. Also it is search
engine indexed. So you have to make sure you choose the right words so your
restaurant can be found while potential customers do a search on Google or
Facebook itself. So I would recommend to put the name of your city or town after
the name.That way you are narrowing your name for the people to find it easily.
Check mark the box as an authorized person to create the page. Input your full
name as an electronic signature. Then click Create Page button. There you go
your Facebook Fan Page for your restaurant is created.
Step 4- Edit the information and upload the logo.
Now that your Fan Page is created you have to input all the information
regarding your restaurant and also upload the logo or picture of your restaurant
to give it a good looking. So when fans come to your fan page they feel
comfortable. It is like your digital home. If it is decorated  beautifully fans
tend to like it. So invest some time to make it look beautiful and professional.
Fill out all the detail information of your restaurant from address, opening
hours, to contact information or any that is relevant to your restaurant. If you
have your website or twitter account you can also display it on the left hand
side below the logo. I would advise you to put something that would encourage
your fans to recommend their friends to join your Fan Page.May be you could
provide incentives like Free Meals for the Lucky Fan every week. Or any other
that you can think of. Remember we are trying to leverage fans to bring in more
fans.
Step 5. Publish your Page.
Your Fan page is not live until you click that last “Publish this Page”
link. Once  it is LIVE, become the first fan of your own Restaurant.
Now your Facebook Fan Page for your restaurant is live and can be searched and
found on Facebook.Congratulation you did it!
Once you create your Fan Page please share your experience about creating and
promoting your Fan Page. Should you have any other questions regarding Fan Page
please feel free to ask me via comments. Also tune in to my next blog post that
will be related to Facebook Fan Page on how to attract more Fans.
Share and Enjoy:
 

__________________________________________________
Do You Yahoo!?
Tired of spam?  Yahoo! Mail has the best spam protection around
http://mail.yahoo.com

[Non-text portions of this message have been removed]

10 Ways to Get Fired For Building Your Personal Brand
By: Dan Schawbel on October 19th, 2009 at 3:30 am
http://www.personalbrandingblog.com/10-ways-to-get-fired-for-building-your-perso\
nal-brand/
For all of you employed readers, this post is directed at you because I
wouldn’t want you to become unemployed, as you build your own personal brand.
Branding has become very personal these days and the relationship we have with
our companies is changing very fast, so I think it’s important to focus on
what you shouldn’t do at work, not just branding and career strategies.  I
view web 2.0 technologies at the driving force that converges our professional
and social lives.  Who you are and how you behave outside of work can impact
how you’re perceived inside of work and visa versa.  The way the world works
now is that you have to spend more time thinking about your actions than you did
ten years ago because words spread faster and they are accessible by everyone.

10 Ways to Get Fired For Building Your Personal Brand
1. Friending your manager on Facebook and then complaining about your job.
At work, people are trying to connect with colleagues on social networks, it’s
a fact and part of human nature.  Sometimes, you feel that you’re friends
with your co-workers and other times you may think that if you friend your boss
or an executive, it may pose for a future career opportunity.  By using social
networks strictly for professional use, then this is a good move, but the second
(and I mean the second) you want to make it a social endeavor, that’s when the
game changes.
A recent survey by OfficeTeam indicated that 32% of executives are not
comfortable at all being friended by their boss, 33% weren’t comfortable being
friended by people they manage or clients.  You want to get to know a person at
work before you friend them or even ask them before you do, otherwise the work
environment might be awkward for you and it might open you up to a world of
misfortune.  Another survey by Proofpoint suggests that you better wise up on
social networks, since 8% of people have been layed off in 2009 for bad
behavior, which is double from 2008.
Both Adam Ostrow (editor-in-chief of Mashable) and I feel that is one of the
funniest social media bloopers around:

2. Putting your personal brand in front of your company’s brand.
This is still one of the hottest and most controversial topics around, so I feel
that it deserves more attention.  A lot of people tweet while at work and
don’t deny it please.  The only thing is that 80% of people are tweeting
about themselves, not about their company’s, a report by two college
professors at Rutgers states.  Companyies, by nature, are looking to build
their own brand, sometimes through the use of selectively chosen spokespeople
who represent the brand and can be quoted within press articles (cited with the
brand).  When you’re getting more attention than your company, you know
something is wrong.  You’re not getting paid to be the Oprah of a company. 
Instead, you’re being compensated based on the value you provide over time. 
When you draw attention to your personal brand instead of your company’s, then
your coworkers will get jealous, your manager will wonder why you aren’t
getting your work done and you’ll
  eventually get fired.
3. Complaining that your company blocks social networking sites.
Company cultures are always different and have politcies (csome have social
media policies for workers too).  Some block social networking sites, while
others refrain because they know that people are doing work at home, so their
employment contract is different.  Robert Half International found that 54% of
companies prohibit use of social networking Web sites during work hours,
including popular sites such as Twitter, Facebook and LinkedIn.  Another survey
by ScanSafe, indicates that 20% more companies are blocking social networking
sites and that 76% currently block them, which is much more than the Robert half
survey.  Don’t complain that your company blocks these sites.  If you’re
truly obsessed, why not access them from your mobile phone?  Otherwise, get
fired and go somewhere else!
Other companies realize the potential in good corporate web-citizens.  For
example, eBillme offers training on how to use social networking sites to spread
company information.

4. Attracting the wrong attention to your company’s brand because of your own.
Please don’t say that a blog disclaimer is going to disassociate your brand
with your company’s because it’s not!  Brand association is powerful and
cannot be undone, which means you have to be smart about what kind of attention
you want to draw to yourself.  A reporter, journalist, producer or blogger can
easily scrape your content and quote it in a story, without your permission. 
They can also link you to your company, even if the blog topic isn’t related
to your current work position.  If news breaks out because of this visibility,
your company can fire you for carelessness and for harming the corporate
brand.  Again, our lives are different now, so you better be safe than sorry
(and that sounds like something my parents would say).
5. Announcing your new job on Twitter when you’re still employed.
Your colleagues are following you on Twitter, trust me.  If you’re looking
for a career move right now or in the future and you want to promote it, wait
till after you’ve moved from your company.  Supervisor references are always
important because endorsements rule the world, so if you want to burn your
previous employer by not being transparent offline, then you’re in trouble. 
You can tell your friends and family, but once you announce it to the world,
it’s fair game and you’ll be laid off immediately without the chance to ever
return to that company.  A lot of people don’t realize that once you
establish a reputation and a network at a company, it can be your safety net in
the future if you desperately need a job.
6. Thinking you’re superior to older workers because you’re tech literate.
If you’re a millennial than you have to start figuring out how you want to
position yourself at work.  Don’t think for a minute that everyone that’s
older than you doesn’t understand technology.  There’s five generations in
the workforce, and although millennials will be the majority in the year 2020
(HBS), older workers still have senior positions.  Instead of trying to be
superior than them, which can get you fired or put you in a corner, try and be
helpful by supporting their projects with your tech expertise.

7. Wearing rags to work because it’s part of your brand.
I’m exaggerating by saying “rags,” but the point is that dressing well
will help you get promoted and wearing something inappropriate for work, can get
you fired over time, if you refuse to change.  A survey by Harris Interactive
and Gillette reveals that 84% of HR professionals agree that well-groomed
employees climb the corporate ladder faster than those who aren’t.  They put
more emphasis on attire than a handshake!  Now, I know what you’re going to
say, “but Dan, what if a mohawk or face Tattoo is part of my brand”?  How
are you going to get a job or be taken seriously that way though?  There are
common social norms that are accepted in the workplace and how you dress and act
is how you’ll be judged by everyone around you.  If you want to be so far
outside of the norm, then don’t get a corporate job in the first place!
8. Posting inappropriate photos on Facebook, forgetting that your profile is
public.
Ray Lam, a former NDP candidate for Vancouver-False Creek  was forced to resign
from his job when photographs were discovered on Faceobook.  One picture showed
him palming a woman’s breast and another with his pants down and two people
pulling at his underwear.  I was going to post the photo here, but it’s too
inappropriate for this blog (see for yourself).  There are other examples of
this happening, such as a teacher being fired for her MySpace picture and a
nursing home assistent taking pictures with her patients.  I have knews for
you:  you don’t own your profiles on social networks.  That’s right,
Facebook owns your profile and companies can pay Facebook for that
information.  Always think of your profile as public!


9. Spending more time on yourself than being productive during work hours.
A company’s main reason for not allowing social networks at work (aside from
legal ramifications for financial institutions, etc) is they feel a productivity
loss.  If you’re sharing advice on your social networks at work and blogging,
then where is the real business value, unless you’re in a social media
specialist type role.  Companies are looking for you to bring in revenue,
decrease costs or at least bring in some ROI for the expense they’re paying
for you to work there.  If you can’t do that because you’re building your
brand at work, then get ready for a big fat pink slip because you’re easily
replaceable, now that there’s 6.3 job seekers for every job.
10. Calling in sick, when you’re not, so that you can focus on your brand.
32% of workers have called in sick when they were well at least once this year
and 28% of employers think more employees are absent with fake excuses because
of the economy, reports Careerbuilder.com.  I know you love your blog and you
want to get your name out there, but dishonesty will come back to haunt you. 
If you aren’t sick, then show up to work please.  You can always work on
building your brand when you get home from work.  Also, when you do excellent
work during regular hours, that can do wonders for your brand.
Closing remarks
Use common sense.  Use common sense.  Common sense is encouraged!  The sad
thing is I firmly believe we’re going to see more cases of carelessness in the
coming years, as more people use social networks, more access social networks
from their mobile phones and the lines between work and life balance are
blurred.  Try putting yourself in your employers shoes the next time you post
on Facebook or tweet.




[Non-text portions of this message have been removed]

Putting the "I" back in your team
Leadership Cliché Challenged and Busted – There is no “I” in TEAM
replaced with There is definitely an “I” in WIN.
BY FC Expert Blogger Cy Wakeman - Wed Oct 7, 2009
http://www.fastcompany.com/blog/cy-wakeman/follow-thought-leader/leadership-clic\
he-challenged-and-busted-there-no-i-team-replac
This blog is written by a member of our expert blogging community and expresses
that expert's views alone.


Have you ever noticed that many of the leadership clichés we live by are not
living up to their reputation? Leaders flippantly throw around sound bites of
so-called “wisdom,” picked up at conferences or from leadership books and
use them without truly questioning whether or not they are true or even useful.
Bit by bit, these clichés have reached the status of “conventional wisdom”
– widespread beliefs that are not only untested but untrue – also causing
havoc in the workplace. 
So as a lover of what’s true, I begin the campaign to eradicate the old
clichés and update these concepts to be useful in our new realities:
Cliché # 1 – There is no “I” in Team.
I often hear leaders reminding their teams, “There is no ‘I’ in TEAM.”
And the way I see it, this is the exact problem with teams. While no one is
ostentatiously taking all of the credit, they are still allowed to think that
they have worked harder than others, are far more valuable than others, or were
not to blame for the lack of results. While they may no longer be discussing
these beliefs publicly, they are spending a great deal of organizational
resources colluding with co-workers behind the scenes, meanwhile not improving
their own approaches or performances. Far worse is the fact that no one is
taking accountability for their part in creating the current results. 
There may not be an “I” in the word “TEAM” but there certainly is an
“I” in WIN!  And in “PRODUCTIVITY,” “IMPROVEMENT,” “DRIVE FOR
RESULTS” and “COMPETITVE.” In teams that are able to succeed in
challenging circumstances, there are plenty of “I’s” being used – with
the account of how we got to where we are today with the current results.
How Do Teams Win?
Leaders need to set clear expectations and goals. They then need to focus the
energy of the team on either achieving the desired results or learning what to
adapt next so that the desired results can be achieved. Learning and results
will only come when each team member is able to honestly assess their results
without considering the circumstances. Next, they need to ask themselves whether
or not they hit the mark and then account for their own actions, assumptions,
behaviors and choices that contributed to the shortcomings of the team. Only
with this clear line of sight directly acknowledging what “I” did to
contribute, can one know what exactly they need to change so that they can
choose to respond differently in the future. 
Tips to reach the finish line:
1)    Leaders must be very clear about the results that are required from
teams. Team projects were approved and budgeted resources based upon a business
case that outlines which results are necessary to even justify the investment.
Do not allow the team to re-write the business case mid-project. 
2)    Subsequently, leaders need to be incredibly honest about a team’s
results. If the team nailed it – great! Celebrate and reward. But if the team
did not reach the mark, stop giving them credit for effort or allowing them to
applaud lackluster results and justify shortcomings by “considering the
circumstances.” There will always be circumstances and teams need to learn to
succeed in spite of circumstances – that is the value they add, mitigating the
risks of the circumstances while implementing and executing.
3)    Lead the team through a thorough accounting of their contributions to
the results. If the team had great results, ask each member of the team to
account for the decisions, choices, approaches and behaviors that led to the
success so that they can intentionally duplicate it in the future. If lackluster
results were delivered, ask each member to identify ways in which they
contributed to the end result. Their responses need to begin with, “I
chose,” “I denied,” “I assumed,” “I did,” “I didn’t,” “I
needed to have” and “I acted” (This is where the “I” in TEAM comes in
and the magic starts to happen!). Once each individual can identify how they
specifically contributed, they can then commit to what they will do differently
in the future – facilitating great learning, individual development, and
better future results. And most importantly, the team becomes immune to
circumstances when it comes to results.   
Every great leader needs to firmly insist on quite a few “I’s” in team.
So, please, leaders, go today and correct your teams. Tell them you lied to them
just to make them all feel better and it backfired. Be very clear with them that
we need to put the “I” back into TEAM in order to restore results back into
the workplace! 
Cliché # 1: Properly busted. On to Cliché #2: “There are no stupid
questions.”
Remember you rock and Cy rocks!
Lead on my friend.




[Non-text portions of this message have been removed]

Diners dish about their restaurant peeves
By LESLIE BRENNER / The Dallas Morning News October 16, 2009
lbrenner@...
http://www.dallasnews.com/sharedcontent/dws/ent/stories/1019glmonlede.19b31c9.ht\
ml
 
As a seasoned diner, you've been through it all.
 
You've listened, dumbfounded, as the opinionated fantasist held forth. She's the
server who tells you her favorite dish – never mind that she hasn't had the
opportunity to taste a single thing on the menu. You've fallen victim to the
Champagne pusher, the maitre d' who offers you a glass of bubbly, with the
implication that it's on the house. (It's not. It turns up on your bill at $18
per lovely flute.)
 
You've suffered the BFFW, the waiter who introduces himself, squats down next to
you to tell you the specials and later in the meal jumps into the conversation
because, hey, we're all friends.
 
Just as great service can turn a mediocre meal into a jolly good time, poor
service can ruin an otherwise excellent dinner. Last month I put the question to
readers of Eats, The Dallas Morning News' food blog: Which service mistakes
bother you most?
 
And readers responded, passionately, in more than 90 comments describing an
array of miscues that drive them crazy. The list paints an interesting picture
of some of the biggest service issues facing Dallas restaurants.
 
Here's the good news: All the mistakes are easy to fix. In the interest of
polishing up our dining act as Dallas steps into the national spotlight, let's
take a walk through the problems (listed in order of how frequently readers
mentioned them) and their fixes.
 
1. Servers with boundary issues
The miscues readers mentioned most often involve servers who have problems with
boundaries in one way or another. "Servers interrupting my conversation,
introducing themselves, chatting, constantly asking if we're 'OK,' " was the way
one reader put it.
 
"I actually prefer professionally aloof to friendly," another chimed in.
Elisio Ruiz, a reader in Dallas, objected to being touched by a waiter. "I can't
explain it," he wrote. "I am generally a warm and cordial person. But for some
reason, I cringe when a server thinks it's OK to put his or her hand on my
shoulder or my arm."
 
Sometimes the boundary being crossed is the plate, as the server describes the
dish she's just placed before you, pointing to each component. "The closer the
finger gets to the food, the more it bugs me," wrote one reader.
 
In fact, servers may be trained to touch customers. "There's some research that
shows that it improves tips," says Alex Susskind, associate professor of food
and beverage service management at Cornell University's School of Hotel
Administration. But that doesn't mean it's necessarily appropriate. "I don't
consider it friendly," he says, "I consider it intrusive." In a casual or
fast-casual restaurant, people have a higher level of tolerance, he says, but
servers should be able to read the guest and guess at their comfort level.
 
The fix: One reader, a former server, suggested that it's up to the customer to
voice preferences, such as whether he minds being touched. Susskind disagrees.
"The server has to figure out what the guest wants," he stresses. In any case,
he says: "Never interrupt a guest. There's nothing you have to do as a server
that's more important than a guest's experience."
 
2. The AWOL waiter
Another constellation of annoyance concerns the waiter who does a disappearing
act.
 
Sometimes he fails to materialize. The host or hostess shows you to your seat,
and then – nothing. No one. If you're lucky, you already have a menu. But
sometimes you're left stranded for five or 10 minutes before being greeted.
Diners search the room futilely for the AWOL waiter when they're ready to order,
when the steak's overcooked, when wine glasses are empty and the bottle's been
set out of reach, when more bread is required.
 
The fix: This is a management issue. The manager needs to make sure the
restaurant is properly staffed, that each server isn't responsible for too many
tables. And he or she needs to be on the floor surveying the scene. If a table
needs attention, the manager can make sure the server gets to it.
 
3. Mea culpa? Not!
The clumsy or inadequate handling of mistakes got under the skin of many
readers: servers who don't know when a problem requires the attention of a
manager, servers who don't apologize for mistakes they've made or who don't ask
whether there was a problem when you left most of the food on your plate. "Don't
make me ask for the manager after determining that the black speck in my wife's
wine is moving on its own and is a live insect," commented Tom Mueller in
Dallas.
 
The fix: It's the server's responsibility to make sure diners are enjoying the
experience. Are they pushing the food around their plates? Find out what's
wrong, beyond just asking generically, "How is everything tonight?" And then
make it right. Not cooked properly? Take it back to the kitchen. Did the guests
suffer crazy-long waits for their food? Comp a dessert or two. Not sure how to
handle it? Get the manager.
 
4. Diner held hostage
Dinner has gone swimmingly, with great food and wonderful service. But now you
can't get your check. You've been there, right? More than a few readers have.
 
The fix: "There are two things that management and staff have direct control
over that will always help the guest's experience," says Susskind. "The
beginning of the meal and the end of the meal. You can never get a guest seated
too quickly, and you can never get a guest the check and get them closed out
quick enough." Just do it.
 
5. The hard-sell
Whether it's a server overselling the side dishes to the point that you wind up
with a table full of food you can't eat, or suggesting a wine that's twice the
price of the one the restaurant has run out of, readers resent the hard-sell. "I
never return to a restaurant when, after dinner, I feel like I have been
victimized by a huckster," wrote one. Still, part of servers' job is to sell the
restaurants' dishes and wines.
 
How to find a balance?
 
The fix: Servers should suggest side dishes or wines they honestly think will
enhance the guests' meal. Don't push the side order of roast potatoes if French
fries come with the main course. If a diner asks about a $50 bottle of wine, and
you have an even better one for $40, suggest that; the diner will appreciate it
and may well leave a more generous tip. The corollary is knowing the menu and
wine list. If you can describe the way something is cooked and make it sound as
good as it probably is, or know the relative bargains on the wine list, that's a
much easier sell.
 
6. The pace flub
Diners don't like to feel rushed, nor do they want to have to wait too long
between courses. Even if the server nails the beginning and end of the meal
(getting customers seated quickly, making sure they have a drink, getting them
the check as soon as the customer's ready for it), pacing the meal in between
those two endpoints is much trickier.
 
The fix: Servers should watch their tables and try to estimate when diners will
be finished with a course to know when to fire the next one. Kristin Kinowski, a
server at Salum, says that four or five minutes before diners are finished with
their appetizers, she'll tell the kitchen to fire the main course. How does she
know? She watches the tables closely. "That's why you see us pacing around the
floor," she says. "Watching closely is key to providing good service in
general."
 
7. Uh-oh, it's Mr. Unclean
A number of readers objected to bussers or servers who sweep the floor while
guests are dining, who wipe the table with the same cloth used to wipe the
chair, who generally disregard hygiene or noisily drop dirty dishes into bins
within diners' earshot. One reader is bugged "when the waiter is clearing the
plates and tries to make it into a logic puzzle by seeing how they can stack the
plates and mush all the remaining food together so that they can take it all
away in one trip. Disgusting."
The fix: Offending bussers and servers, clean up your act.
 
8. Tip shenanigans
"Do you need change?" This is a question that irked a number of readers. The
server who rounds up change from a cash tip in his own favor, or who brings the
change in big bills in the effort to land a bigger tip also fared poorly.
The fix: Bring the change, bub, even if you're not sure it's necessary. If some
smaller bills are needed for the diner to leave a 20 percent tip, then by all
means, include some smaller bills.
 
9. The plate escape
"I cannot stand it when a server begins removing plates before everyone at the
table has finished the course," wrote Liz Ginsberg, a reader in Dallas. "The
person still eating feels rushed, and the person whose plate is cleared before
everyone else feels like they ate too fast." I have to say that those are my
sentiments exactly, and they were echoed by a number of readers. But Jerri Joles
in Richardson commented: "It bothers me when they don't pre-bus or remove some
of the dirty, used plates, bowls, etc. from the table. They clutter the table
and are unappetizing-looking." So who's right?
 
As it turns out, it depends on the type of restaurant and on the specific policy
of the management. "Some restaurants allow servers to clear plates before
everyone's done," explains Susskind, and it's usually the casual spots. In more
upscale establishments, he says, "The standard is you don't clear till
everyone's done."
 
And what about in-between places? "There is no one convention," he says. "It's
up to the feel they want to have in the restaurant."
 
But how confusing for customers! And how disturbing to the diner who finds one
or the other objectionable.
 
The fix: At Ellerbe Fine Foods in Fort Worth, a server came up with a smart
solution. "Normally I don't clear plates until everyone has finished," she said,
when one of my dining companions had finished his soup. "But perhaps you'd like
me to take this now?" Problem solved, though it was a mouthful for a busy
server.
 
10. The wine squeeze
A server pours the wine all around the table, overfilling the glasses, and comes
up empty before getting to the last guest. "Another bottle?" he asks perkily. It
may or may not be an honest mistake, but it's a mistake nonetheless, and in any
case it can leave the diner feeling had. Of course, you have to spring for that
second bottle.
 
The fix: This one's easy. "You've got to do the math," says Michael Flynn, wine
and beverage director at the Rosewood Mansion on Turtle Creek. A bottle has 25.4
ounces, "so you do some quick division. You have to make sure you're pouring the
same amount in everyone's glass, no matter how small that portion may be." And
if it's just three diners, and you're on the second round of pours? If someone
hasn't been sipping, don't top off their glass.
 
Turns out it's just like most other points of service. "You have to keep an eye
on them," says Flynn. "It's actually being involved in service, in serving
people as they need it."




[Non-text portions of this message have been removed]

An up to date look at who is actually reading/using mobile marketing…(They
should charge for this data!)
Posted on October 15, 2009 by The Mobile Marketer
http://themobilemarketer.wordpress.com/2009/10/15/an-up-to-date-look-at-who-is-a\
ctually-readingusing-mobile-marketing-they-should-charge-for-this-data/
Minorities Lead Mobile Content Adoption / Blacks and Hispanics come out ahead
Based on data from the Pew Internet & American Life Project, consumption of
mobile content shows significant variation among ethnic groups.
According to Pew’s “Wireless Internet Use” report, 32% of all US consumers
ages 18 and older have accessed the mobile Internet. Penetration was up 8
percentage points over 2007.


eMarketer estimates 26.3% of mobile phone subscribers will log on to the mobile
Web at least once per month in 2009, for a total of 73.7 million mobile Internet
users.
The digital divide may still exist when it comes to traditional Internet
access—Pew found white consumers were more likely to go online via a PC on a
typical day than blacks, at 59% versus 45%—but the opposite pattern exists for
mobile Internet usage.
Nearly one-half of black and Hispanic consumers reported having ever used the
Internet via a handheld device in 2009, compared with only 28% of whites. Usage
by all three groups grew since 2007, but usage by minorities climbed more
quickly. By 2009, 29% of both blacks and Hispanics went online with a handheld
device “on a typical day,” versus only 17% of whites.



“Black and Hispanic households are more likely to use a mobile phone as their
primary phone, and have a lower penetration rate of PCs and broadband than white
households,” said Lisa E. Phillips, eMarketer senior analyst. “It makes
sense that these groups access the Internet via a mobile device more often than
whites.”
High mobile usage among minorities is not limited to online content. Black and
Hispanic mobile users were more likely than whites to participate in every
mobile activity studied by Pew, including sending and receiving text messages,
taking pictures, playing games and accessing e-mail.


One-half of white mobile users reported consuming at least one type of mobile
content on a typical day, compared with 58% of black mobile users and fully 70%
of Hispanics.

__________________________________________________
Do You Yahoo!?
Tired of spam?  Yahoo! Mail has the best spam protection around
http://mail.yahoo.com

[Non-text portions of this message have been removed]

Keep your elevator pitch fresh, relevant
3 Ways to Pitch Yourself in 30 Seconds
by Jodi Glickman Brown - October 8, 2009
http://blogs.harvardbusiness.org/cs/2009/10/nail_your_elevator_pitch.html
 
People often think of the elevator pitch as something you use when you're
interviewing for a new job or trying to raise capital for a new venture. The
elevator pitch, however, is no less important once you've got the job as it is
when you're looking.
In fact, your personal 30-second spiel about who you are, how you're different,
and why you're memorable is arguably more important once you've landed that
great position or won the support of investors and now interact with senior
colleagues and important clients regularly.
A managing director on Wall Street once told me of a summer associate who made
an uncharacteristically strong impression on senior leadership during a
welcoming cocktail party. Within days, the managing director received numerous
calls from senior partners advising him to "make sure she gets the attention and
resources she needs to succeed this summer." The young woman's career has been
on the fast track ever since.
So what can you possibly say over canapés and white wine to create so many
powerful advocates so quickly and effectively? Think through the following ideas
before you craft your pitch:
Have a compelling reason for why you want to be there, as in "why did you decide
to join the firm?"
Know what it is that uniquely qualifies you for the position so that you can
answer the how, as in "how did you actually get a job here?"
Be able to explain what ties together past and current experiences in a way that
is compelling and makes sense — what is the glue that holds your story
together?
Of course, no executive or senior manager would dare ask those questions, but
your elevator pitch is your opportunity to communicate these critical pieces of
information to someone in a crisp but casual way — without even being asked.
As you answer the why, how, and what,
Think relevant, not recent. There's no rule that says you must talk about your
resume in reverse chronological order. Mike was a marketing executive who took a
sales position abroad for two years. Yet when he returned to marketing, he kept
introducing himself as a someone who had just made a career switch, always
leading off with an anecdote about his short stint in sales. Instead, Mike
should have started with the fact that he was a seasoned marketing professional
who had taken a sabbatical but was now back where he belonged — putting his
marketing prowess to work and thinking about what drives consumer spending
habits.
Focus on skills-based versus situation or industry-based qualifications. You
don't have to have a background in finance to be good at finance. Alex was a
chemist and researcher who had gone back to business school to get her MBA. She
decided she wanted to work in corporate finance for a large pharmaceutical
company but she was afraid no one would take her seriously given her background.
When I pressed Alex to explain to me why she chose finance, she exclaimed,
"That's the way my brain works." Her thinking was methodical, mathematical and
formulaic — all of which translated to someone who was a natural fit within a
corporate finance department. Instead of focusing on the fact that her
background was in academia, Alex could emphasize to colleagues and clients that
she was a numbers person at her core.
Connect the dots — what ties it all together? If you are a chemist turned
finance professional or a marketing executive with experience in international
sales, you should find a way to bring together the richness of your experiences
and show how each one complements the other. For me, personally, I had a
significant hurdle to clear with clients as a former Peace Corps volunteer
turned investment banker. I explained away the dichotomy of the two by
emphasizing to others that I was big picture thinker by nature and a numbers
person by training. Banking was a perfect combination of the two — I liked
looking at client's challenges and issues from 30,000 feet and then digging down
into the details to come up with creative financing solutions. Whether the
client was the mayor of my Peace Corps town in Chile or the CEO of a healthcare
company, I could start at a high level and drill down quickly and effectively.
Mike, Alex and I were all arguably better positioned because of our unique
stories and experiences. Ask yourself these questions as your craft your
personal pitch and you'll be able to use your story to impress others from the
get-go too.

Jodi Glickman Brown is the founder and president of communication consulting
firm Great on the Job. She is the author of the forthcoming book Great on the
Job, to be published by St. Martin's Press in early 2010.




[Non-text portions of this message have been removed]

ENGAGED “The Service Game Face”
By Paul C. Paz – www.WaitersWorld.com
Pizza Today Magazine - September 2009 Issue
See Page-20
http://www.pizzatoday.com/IMags/Piz0909/pageflip.html
 
I was traveling the main interstate close to midnight when I stopped buy a
restaurant still open in the small community of Canyonville, Oregon. My 18-year
old waiter, Kyle, graduated last year from his small high school in a senior
class of twelve students. He was not the best in the technical aspects of formal
tableside dining service, but he was a joy as my service provider.
 
His entire demeanor was, “How can I possibly help you?” His animated service
and genuine sense of hospitality was a breath of fresh air in comparison to all
the other businesses that I encountered over the past several months. The way he
made me feel “important” made up for any service faux pax that otherwise,
might have distracted me from the visit.
 
The current culture of technology is a young labor pool more comfortable
communicating with staccato text messages or emails using a language only their
peers understand. As a food service operator, the challenge is finding staff
that has the proper “soft skills” to engage customers face-to-face in a
professional and businesslike manner but still maintain their individuality as a
person.
 
Soft skills, also referred to as emotional intelligence skills, are the skills
the enable effective listening to others. They are skills that enable a person
to handle themselves at work and how to relate with their customers and peers.
This includes the ability to demonstrate ones humanness rather than title,
position, or authority. Soft skills include the ability to display being
gracious, sincere, or handling conflict. It is the ability to display empathy
and optimism and to have a high level of awareness of what is going on around
them.
 
Oregon’s "Q Care" Customer Service Training Program (www.OregonQCare.com) was
developed by the state agency, Travel Oregon, to elevate the customer service
awareness and skills for the travel tourism businesses in the state. It defined
three primary customer service needs as the foundation for understanding what
consumers want and expect from their service providers. They are:
 
3-Q Service Standards
Understand me – Different types of visitors and recognizing their different
needs
Respect me - Specific attitudes and actions that show customers are highly
valued
Help Me - Service skills that deliver and make your business’s hospitality a
reality
 
In line with this concept, young restaurant staff typically lacks the life
experience to bring these skills to the work environment. They are skills that
cannot be learned reading a manual and are best taught with on the-job-training,
role-play, and mentoring.
 
One critical aspect of customer service is the difference between delivering
service and initiating service. Delivering service is the ritual and mechanics
(i.e. “serve plates on the left - remove from the right”). Initiating
service is delivering service without being prompted by the usual ritual or
mechanics. The service commences without request.
 
For example, staff might not greet a customer until the customer has read the
menu, makes a decision, and then approaches the counter to place their order.
Initiating service is greeting the customer with eye contact, a smile, and
“May I help you?” as customers enter the door! That holds significantly
higher customer service value because the staff initiates the welcome and
hospitality rather than it occurring only by the prompt of the customer. That
elevated perceived value of your company is a leg-up on the competition!
 
Game Face: One typically visualizes the professional athlete portrayed in the
sport drink commercials… strong, fierce, and intimidating. But that is not
acceptable in the hospitality business. The proper Game Face in food service is
engaged eye contact and a smile. Engaged eye contact is the visual skill of
letting your customer know you are listening to them and are providing them the
attention they seek. The smile is the international signal of friendliness and
being of no threat. It is also an invitation to service. These gestures display
the message, I see you, I work here, I can assist you, ask me, etc. Studies have
shown that the one facial expression that can be recognized at the farthest
distance is the smile, which is how critical it is as a soft skill. What is most
interesting is these displays are mirrored by customers. Engaged eye contact
combined with a smile sets the tone for a positive start in a business
transaction. Think of how the
  smile is displayed, often almost unconsciously, when engaging others and
especially when meeting new people.
 
Another area of contention for the service side of dining is what is known as
the critical moments of service. There are 5-Critical Moments of Service that
can be the tipping point in the ritual of dining that leaves customers with
either a favorable or unfavorable impression of their service experience and
your business. They are the moments that transition to the next dining service
step and if missed, can cause a high level of distress for the customer. What is
important is that the service staff knows the 5-Critical Moments of Service and
understands that urgent action is required to prevent and/or remedy the
situation.
 
5-Critical Moments of Service
#1.     Greeting – Customers must be greeted/acknowledged with in
1-minute~
#2.    Refill of Beverage – Optimum moment to offer a refill is when the
drink is half-empty.
#3.    Next Course – Closely monitor the time between the customer finishes
a course and is anticipating the arrival of the next.
#4.    Dessert – Always provide the opportunity for the customer to
consider dessert.
#5.    The Check – As urgently important as the greeting! When customers
are ready to leave… they want to leave NOW! Delays in presenting and
processing their payment can ruin their memory of all the good service
experiences provided before this one Critical Moment of Service!
 
Coach your staff on your service standards, these soft skills, and the
importance of positive service-sales execution. Best results are achieved with
role-playing in the on-the-job environment. Without educating your staff, they
are left with the only remaining emotion to conduct business on your behalf…
PANIC! Panic is what we feel in that moment of not being able to perform our
jobs, regardless of the level of effort!
 
Educate your staff on their role in branding your company to sustain continued
and future opportunity for themselves, the company, and every team member in
your organization. Make it personal!
 
From the consumers’ perspective, each employee they engage and how they make
them feel, no matter how slight the encounter is the face of your company
customers will remember… forever.
 
The continuing service challenge is to create a memorable dining experience for
your customers and working experience for your employees. The standard should be
one of seeking service opportunities to acknowledge, assist, guide and serve
your customers and eachother.
 
The goal for each employee is to make their customers and teammates feel
welcomed, safe, and secure as they perform their role with your company.
 
The prize is a successful business that provides good jobs, great career
choices, and sustains the economies in the communities we serve and live.
 
As I learned long ago from my mentor, Bob Farrell (Farrell’s Ice Cream
Parlors) and famous author of the concept and book, “Give ‘Em the Pickle”,
“Service is Sales”.
 
In today’s economy, service is the deal breaker. And to my new friend, Kyle of
Canyonville, Oregon… “I’ll be back!” (Also learned from Mr. Farrell!)




[Non-text portions of this message have been removed]

 
 
‘Dine and dash' scams abound in tough times
By Steve Coomes – Nations Restaurant News – 9/17/09
http://www.nrn.com/article.aspx?id=373840




 
 
 
(Sept. 17, 2009) For as long as there have been restaurants, customers have been
stealing meals. Known commonly as a "dine and dash," guests leave without
paying, stiffing operators on the victuals, servers on their tips and leaving
both parties asking why.
 
Those caught in the act often report doing it for the thrill, while others claim
they were hungry and had no money. Since the onset of the recession, some have
speculated that lightened pocketbooks might motivate more people to get a steal
of a meal.
 
Paul Paz, a self-described "career waiter," industry trainer, speaker and
founder of Waitersworld.com, said he has not noticed an increase in "walkouts"
at the moderately upscale restaurant where he works, but some of his restaurant
colleagues say otherwise.
 
"I'm definitely hearing about an increase, but it's generally in lower-priced
restaurants," said Paz, who lives in Tigard, Ore. "I think that the more
sophisticated the restaurant, the more sophisticated the clientele, though I
have seen it before."
 
Paz once served a lavish lunch to a pair of businessmen who appeared more than
able to pay for their meal, but who vanished after heading to the bathroom. A
theft setup was more obvious on another occasion: A young and casually dressed
couple began ordering copious amounts of expensive food and drinks, and Paz
became suspicious.
 
"I left my station for a minute, and when I came back, they were gone," he said.
"The only thing they left was a check, which we don't accept, and it was stolen,
too."
 
Paz said servers need to trust their guts and be aware of anything that signals
that "something out of the ordinary is going on" if they're to stop such an
offense. But Michael Raysess, a server in Malibu, Calif., said some restaurants
layouts make that difficult.
 
"The restaurant [where he last worked] is just physically a large place and with
outdoor seating," said Raysess, a 26-year veteran server. "If they want to, they
can walk right off the deck there and get away. É The problem is I'm not over
them all the time because I'm walking 25 yards away to get drinks."
 
Since Michael Beckmann, manager at Boombozz Pizzeria and Taphouse in Louisville,
Ky., ran out on a few meals when he was younger, he said he knows how to train
his front-of-the-house staff on what to look for.
 
"It's all about creating a distraction: You confuse a waitress, get them to do
something for you away from the table, like asking for a lot of refills, some of
you go to the bathroom and then the rest bust a move," Beckmann said. "The trick
is to create a team atmosphere where you watch out for each other's tables and
watch for signs that something's up."
 
Beckmann tried to avoid calling it profiling, but he said it was difficult not
to get suspicious when someone walks into a nice restaurant in "baggy shorts and
a T-shirt asking for shots of Patron for his buddies."
 
"It's out of place, and that tells you something," he said.
 
Paz said waitstaff cutbacks in some restaurants make walkouts easier than ever
because servers have more tables than ever to manage.
 
Raysess said dine-and-dash incidents are less common in Malibu, but
credit-card-related scams are on the rise. Guests don't sign their credit card
receipts before leaving, and then they call back and contest the charges.
Without a signature, proving the cardholder initiated the transaction is
difficult.
 
"Once a customer rang up a bill for $400, didn't sign the receipt and called
back to contest the charge," he said. "We knew they'd been there before because
they'd even made a reservation that night."
 
Paz also said he is seeing the card receipt scam.
 
"I think they have an idea that if we don't have the receipts, they don't have
to pay," he said. "And when they do that, there's no tip."
 
Even if a restaurateur is lucky enough to catch a thief in the act, confronting
them is a tricky business, said Barry Shuster, an attorney in Cary, N.C. If an
owner detains a suspect, he should call police immediately to handle the
situation rather than attempting to hold the thief for any length of time. If
the suspect tries to run, matters become much more complicated, since both the
staff and perpetrator could be injured.
 
"You don't want an overzealous staff member applying excessive force to the
person committing the crime and risking a lawsuit," said Shuster, who also
teaches hospitality law at two North Carolina universities. "You don't want to
apprehend an individual if it could escalate into violence. [And if they get
behind the wheel], you're running the threat of hurting other customers in the
parking lot."
 
If a subject can be followed to a car, Shuster recommends getting the make,
model and plate number and calling 911. If the criminal escapes on foot, get a
good description and turn that over to police as well.
 
Above all, he said, have a plan in place that the staff is trained to execute
should a dine and dash occur.
 
"Training and education are vital in these circumstances," Shuster said. "It can
avoid a lot of problems in the end because people know what to do and what not
to do."




[Non-text portions of this message have been removed]

Hello...
Here's a fun challenge: can you make a YouTube.com video that's fun, short, and
useful for your peers in developing menu knowlege? Check the link below for
details!
Paul www.WaitersWorld.com
�
�
A server who knows the menu? What a laugh!
http://www.fohboh.com/profiles/blog/show?id=1411008%3ABlogPost%3A330361
�

__________________________________________________
Do You Yahoo!?
Tired of spam?  Yahoo! Mail has the best spam protection around
http://mail.yahoo.com

[Non-text portions of this message have been removed]

�

�

Fake Your Expense Reports: NY Restaurant's Recession App Helps You Fudge
Receipts (PHOTOS)
HuffingtonPost.com �09-30-09
http://www.huffingtonpost.com/2009/09/29/fake-your-expense-reports_n_303587.html
Forget Lehman, Bear Stearns, and AIG. According to New York steakhouse Maloney &
Porcelli, "one of the biggest casualties of the financial crisis is the expense
account meal."
But not any more. Maloney & Porcelli have created an "expense-report generator"
that lets you take the total you spent on your meal (or essentially any figure
that you choose) and creates fake cab, office supply, and cheap-o meal receipts
so your boss won't know about the filet mignon and merlot you had on the
company's tab. Check it out for yourself at expenseasteak.com.
The receipts come looking like they've been photocopied onto 8 1/2 x 11 paper,
and are even perfectly wrinkled to look like they've been mussed while stuffed
into a pocket.
According to New York magazine, Maloney & Porcelli is also supposedly "giving
customers doggie bags marked with Chipotle, Sbarro, and Olive Garden logos."
Nice touch.
Thank goodness those starving bankers and business folk can go back to enjoying
their $21 shrimp cocktails, $44 rib steaks ($10 sides are extra), and $46 filet
mignons.
It's no coincidence this app comes from Maloney & Porcelli, which happens to be
located kitty corner from Bank Row in Manhattan's Midtown East, at the nexus of
JP Morgan, UBS, and the former Bear Sterns buildings. Praised as the "best
business lunch in NYC" by Gourmet Magazine, they must be feeling the pinch.

__________________________________________________
Do You Yahoo!?
Tired of spam?  Yahoo! Mail has the best spam protection around
http://mail.yahoo.com

[Non-text portions of this message have been removed]

Restaurants Investing Less in Service
Restaurants and Institutions, 9/1/2009
http://www.rimag.com/article/CA6686530.html?nid=3458&rid=12524611
In the face of sluggish sales, more than half of restaurant operators say
they're cutting back on customer-service training. A recent study by the Council
of Hotel and Restaurant Trainers (CHART), a Westfield, N.J.-based trade
association, found 53% of operators reporting that their training budgets had
decreased in the past 18 months. In casual dining, 64% said they'd allocated
less money for training.
But even when budgets are shrinking, reinforcing high customer-service standards
is crucial for new hires as well as more-experienced workers, says John Isbell,
CHART's immediate past president and a leader of the study. “Cutting training
hurts operators' ability to service guests who are looking for an experience,”
Isbell says. “Those operators who continue to find inexpensive ways to
[emphasize] service are the ones who will be ahead of the curve when the economy
turns around.”
Role-playing is an underutilized training method, he adds. “Once [workers]
envision and go through a situation, it's so much easier.”




[Non-text portions of this message have been removed]

ENGAGED: The Service Game Face
Pizza Today Magazine (Sept 2009)
by Paul Paz - WaitersWorld.com

WaitersWorld authors feature article in Pizza Today Magazine Sept 2009
electronic and print edition.

Engaging customers with genuine hospitality, especially under stressful
situations, is a skill not a natural gift. Staff must be trained in this skill
or they are left with only one emotion to represent your your company
face-to-face with customers: PANIC!

See page 20 at this Pizza Today Magazine link:
http://www.pizzatoday.com/IMags/Piz0909/pageflip.html




[Non-text portions of this message have been removed]

Government outlines H1N1 flu guide for small businesses
�
The Department of Homeland Security and the Small Business Administration have
paired with the Centers for Disease Control to create an H1N1 flu "preparedness
guide."
According to Homeland Security, outbreaks of H1N1, also known as the swine flu,
are occuring across the country and are expected to coincide with the return of
flu season in the fall and winter.









The agency encourages small businesses to put strategies in place before the flu
season hits.
To view the preparedness guide, visit
http://www.flu.gov/




[Non-text portions of this message have been removed]

Do social networks endanger the workplace?
While studies that show employees who use the Web for personal reasons at work
are more productive than those who don't, companies still have to carefully
consider whether to allow social networking in the workplace because of security
concerns, David Kelleher writes. Set usage guidelines, educate your workers on
the risks and limit access with filters, he recommends.
�




To ban or not to ban? Social networking in the workplace
By David Kelleher� - 10 September, 2009
http://www.echannelline.com/usa/story.cfm?item=24958

As more and more people go online to create profiles, share photos, news and
gossip with friends and spend hours updating their details and friend lists,
organizations are starting to reassess their approach to social networking in
the workplace.
�
What makes social networking on the Internet so popular is the power it gives
individuals to create, maintain and expand any number of networks to include
family, close friends and people who share a similar interest, profession or
hobby.
When used properly and with discretion, social networking can be a valuable
resource for businesses looking to expand their visibility or for employees who
need to communicate with colleagues. In most cases, its also a free service.
�
It is not uncommon for businesses to use social networking sites to carry out
initial background checks on new recruits and a discreet way to check on what
their employees are doing and saying in the public domain.
�
To ban or not to ban? A recent University of Melbourne study showed that people
who use the internet for personal reasons at work are about 9% more productive
than those who do not. However, the study fails to factor in a very important
element: security. Every action, every minute spent online (and on social
networking sites) may expose an organization to numerous security threats. While
the subject of productivity increase is debatable, the security issues are not
-- they are all too real.
�
Where does that leave businesses?
�
They have three options.
�
1. Ban access to social networking sites (and access to Internet as well).
2. Set limits and restrictions on their use
3. Allow unmonitored access
�
Banning access to social networking sites may be an optimal solution for some
organizations, and one can see banks and government departments particularly
keen on keeping the status quo. However, many smaller organizations may feel
that taking a heavy handed approach could be counterproductive, indicate a lack
of trust in employees (probably justified to an extent) and is too restrictive.
On the other hand, you certainly do not want to give unfettered access to social
networking sites; for reasons that will be explained further on. The best option
may be to allow access to social networking sites while imposing limits (when
these can be used and by whom). Regardless of which option an organization may
choose, they must ensure that the basic safeguards are in place:
* up-to-date anti-virus software
* a firewall and the ability to monitor the use of the internet in general
* ability to monitor social networking sites in particular.
�
The CONCERNS
What is important to note is that social networking sites (e.g. FaceBook) as
applications are not a problem per se for organizations. It is the people who
use them that are a cause for concern. Social networkers, if one can call them
so, are the root of five problems.
�
PRODUCTIVITY
One reason why organizations are keen on banning social networking in the
workplace is the fact that employees spend a great deal of time updating their
profiles and sites throughout the day. If every employee in a 100-strong
workforce spent 30 minutes on a social networking site every day, that would
work out to a loss of 13,000 hours of productivity in one year! Although this
may be a generalization, organizations do look very carefully at productivity
issues and it goes without saying that 50 hours of non-productive work a day
does not go down well with management. When you factor in the average wage per
hour you get a better (and decisive) picture.
�
There is also an effect on company morale. Employees will not appreciate
colleagues spending hours on social networking sites (and others) while they are
working hard to clear the workload. The impact is greater if no action is taken
against the abusers.
�
RESOURCES
Although updates from sites like FaceBook or LinkedIn may not take up huge
amounts of bandwidth, the availability of (bandwidth hungry) video links posted
on these sites (or links taking users to sites like YouTube) creates problems
for IT administrators. There is a cost to internet browsing, especially where
high levels of bandwidth are required.
�
VIRUSES AND MALWARE
This threat is often overlooked by organizations. Hackers are attracted to
social networking sites because they see the potential to commit fraud and
launch spam and malware attacks. There are over 50,000 applications available
for FaceBook (according to the company) and while FaceBook may make every effort
to provide protection against malware, these third-party applications may not
all be safe. Some have the potential to be used to infect computers with
malicious code which in turn is can be used to collect data from that users
site. Messaging on social networking sites is also a concern and the Koobface
worm is but one example of how messages are used to spread malicious code and
worms. A worm infection is the last thing an administrator wants to have to deal
with!
�
SOCIAL ENGINEERING
This can result in data or identity theft. Social engineering is becoming a fine
art and more and more people are falling victim to online scams that seem
genuine. Users may be convinced to give personal details such as social security
numbers, employment details and so on. By collecting such information, data
theft becomes a serious risk. On the other hand, people have a habit of posting
details in their social networking profiles that beggars belief. While they
would never disclose certain information when meeting someone for the first
time, they see nothing wrong with posting it online for all to see on their
profile, personal blog or other social networking site account. This data can
often be mined by cybercriminals.
�
REPUTATION AND LEGAL LIABILITY
Although there have been no major corporate lawsuits involving evidence from
social networking sites, organizations need to be observant for employees who
may be commenting publicly and talking about their employer. For example, one
young employee wrote on her profile that her job was boring and soon received
her marching orders from her boss. What if a disgruntled employee decided to
complain about a product or the companys inefficiencies in his or her profile?
The legal implications and the damage to the organizations reputation could both
be substantial.
�
Striking a balance What is worrying about social networking sites is that they
encourage people to give as much information about themselves as possible. Even
the most prudent and well-meaning individuals can give away information they
should not. At the same time, nearly everyone today (even senior managers) have
their own online profile on a social networking site and like the idea that they
can keep in touch with contacts and friends via that interface.
�
If you are going to allow access to social networking sites there are some basic
tips suggested:
�
1. Restrict access. Give employees a breather and allow them to access social
networking sites during their lunch break, before and after office hours. Web
filtering software gives administrators the ability to implement time-based
access to these and other sites.
�
2. Educate and train staff. This is very important. Most employees are not aware
how their actions online can cause security issues for the organization. Tell
them in a language they understand how a simple click on a link they receive or
an application they download can result in malware infecting their machine and
the network. Additionally, tell them not to click on suspicious links and to pay
attention when giving out personal details online. Just because employees are
clever enough to have an online profile does not mean they are technically-savvy
or that they have a high level of security awareness.
�
3. Set security and usage policies. Have all employees sign any policies related
to the use of the internet at work, access to social networking sites and what
they are allowed to say or do during office hours. Monitoring of all web
activity is important and employees should be aware that their actions are being
recorded and that failure to adhere to company policy can result in disciplinary
action and/or dismissal.
�
David Kelleher is communications and research analyst at GFI.




[Non-text portions of this message have been removed]

Consumer Food Recall & Safety Web site unveiled
by Lynne Terry, The Oregonian - September 11, 2009
http://www.oregonlive.com/news/index.ssf/2009/09/food_safety_rule_web_site_unve_\
1.html
A new rule targeting food safety requires manufacturers to tell the government
about any potentially contaminated product within 24 hours.
The information will be fed into a database designed to help the Food and Drug
Administration prevent outbreaks of food poisoning across the country.
Michael Taylor, the new senior adviser to the FDA's commissioner, said the
database means that instead of waiting until people get sick the agency will be
able to act as soon as it has information about potentially contaminated food.
Also this week, the White House unveiled a new Web site that gathers information
on food safety from various government agencies. The site, www.foodsafety.gov,
is designed to make it easier for consumers go get information about recalls and
find tips on safe food handling practices.
These actions are part of a campaign by President Obama to bolster America's
food safety network which has been hit with successive outbreaks of food
poisoning involving salmonella, E. coli O157:H7 and other pathogens in
everything from ground beef to spinach to peanut butter and cookie dough.
At the end of July, the U.S. House approved a bill that would give the FDA
authority to force food recalls, examine company records and carry out more
frequent inspections. The Senate is set to consider its own version of the bill
this session.




[Non-text portions of this message have been removed]

Calif. court will not review Starbucks tips case
Associated Press Financial Wire, September 10, 2009
http://www.chainleader.com/articleXML/LN1036813759.html
The California Supreme Court will not review a appeals court ruling that wiped
out an $86 million judgment against coffee giant Starbucks over tip sharing at
its stores in the state.
The court did not explain why it refused to take up the case at its weekly
conference Wednesday.
In 2008, a San Diego County Superior Court judge ordered Starbucks Corp. to pay
millions in restitution to baristas who had to share their tips with
supervisors.
In June, the 4th District Court of Appeal reversed that ruling, saying that
supervisors perform the same job as baristas and should get their share of
collective tip jars.
Former barista Jou Chau filed the class-action lawsuit in 2004 on behalf of more
than 100,000 current and former baristas in California.
Information from: The San Diego Union-Tribune, http://www.signonsandiego.com




[Non-text portions of this message have been removed]