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Restaurant defends offer to rehire servers to do heavy maintenance work

Some employers are demanding a lot of flexibility from returning staff — which some employees see as an effort to force them out.

Construction for outdoor dining is seen at a restaurant on June 22 in New York City, as the city begins Phase Two of reopening public activities during the coronavirus pandemic. (Angela Weiss/AFP/Getty Images)
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Like most advice columns, this one keeps reader questions anonymous. Not just to protect the employers and employees concerned, but also because most issues that come up could happen anywhere, to anyone.

But it’s not hard to connect the dots between my June 11 column on a restaurant offering to hire back service staff as maintenance workers — now required to lift 100 pounds or more — and a June 19 Los Angeles Times article by food columnist Lucas Kwan Peterson with almost identical details. According to the L.A. Times, Yamashiro, a well-known establishment on the Hollywood dining scene, obtained a Paycheck Protection Program loan to help meet payroll and other expenses during the coronavirus pandemic shutdown. The restaurant contacted former servers, bartenders and other front-of-house staff with an offer to hire them back — but into maintenance positions completely different from the jobs they had previously held.

The reader who submitted the question for my column, former Yamashiro server Alexander Galvez (identified here with permission), said he and his colleagues thought the restaurant was trying to “clean house” and intended for them to decline the offer. Under the PPP rules, those loans will still qualify for forgiveness if workers turn down a good-faith written offer to rehire.

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I spoke with representatives of the restaurant, and they said the entire situation was misconstrued.

“We had made offers to existing staff to come back to the facility to assist with the individual things that needed to be done to position the facility for reopening,” said Tim McCouch of public relations firm TLK Fusion.

“Everyone got the same offer,” said Freddy Braidy, CEO of BNG, one of the firms operating Yamashiro since 2016. According to Braidy, a “handful” of former employees came back to help reorganize and upgrade the restaurant.

But what about the job offer requirement that “the employee must regularly lift and/or move more than 100 pounds” and perform essential duties such as “replacing … outlets, garbage disposals, faucets and toilet parts” and “installing light fixtures”?

McCouch replied that California requires a high level of disclosure and transparency in job descriptions so employees fully understand everything the job may entail. According to Braidy, the restaurant “never asked anyone that wasn’t qualified to do a trade to do those activities,” instead hiring outside professionals for specialty electrical and plumbing work.

“This was, ‘pick up a paintbrush, move a few chairs around … and let’s get some money back in your pocket,’ ” said Ken Collis, also with TLK Fusion.

However, state labor authorities seem to agree that employees who declined Yamashiro’s offer were justified in doing so. Loree Levy, a spokeswoman for California’s Employment Development Department (EDD), confirmed that, generally speaking, “where the work that is offered is not in the individual’s usual occupation, and is not appropriate based on the individual’s prior training and experience, the position offered would not likely be suitable.”

In other words, a worker who turned down such an offer could still receive California unemployment benefits.

Galvez said he and others who turned down the rehire offer with Yamashiro successfully demonstrated to the EDD that the job offer was unsuitable by providing copies of their communications with management, after which they began receiving unemployment benefits.

According to Galvez, former employees were given until June 4 to accept or decline the maintenance job offer. The next day, he said, their old front-of-house jobs were advertised online.

Yamashiro maintains that the ad was part of ongoing efforts to attract and retain talent and they had simply failed to cancel the ad during the shutdown.

“While we were employing and serving food, that ad was running, and that ad will continue to run,” said McCouch. (Note: As of June 23, no jobs were listed as available at Yamashiro on LinkedIn or Glassdoor; Indeed.com showed one ad for “FOH team member” candidates at Yamashiro with bartending, running, serving and bussing experience. According to the date stamp, it was posted June 4.)

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At any rate, the restaurant was due to reopen Thursday, and those employees who came back to work will put down their paintbrushes and go back to mixing drinks and running orders.

Yamashiro did not respond directly to questions about whether it would restore the original pre-pandemic job titles and descriptions for the rehired employees.

And Galvez, now working at a West Hollywood bar, says he and some former colleagues have obtained legal representation with the intent to take legal action against Yamashiro.

I later heard from other former employees of Yamashiro who confirmed that they had seen brief or no interruption in their unemployment benefits after turning down the job offer. Several also confirmed that they were taking or were considering joining in legal action against the restaurant for different causes.

“As of right now there are no lawsuits," Braidy said. "We did everything by the book and as advised by our HR department.”