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Changing Restaurant Staff to Drivers? Adapting to COVID-19 Restrictions Requires Attention to Liability and Employment Laws

March 27, 2020

By: Drew Sorrell and Rachel Gebaide

With coronavirus effectively shutting down normal operations for many stores and restaurants, owners have begun to transform their business model to include a significant delivery service component; turning hosts, servers, and bartenders into delivery drivers. In most instances this is perfectly legal, provided employers consider and address some issues. While impossible to address all of the issues, this article discusses some general considerations.

Insurance

A standard business insurance policy (e.g., a CGL or similar policy) usually does not automatically provide coverage for business-owned or privately owned vehicles used for business purposes. Conversely, insurance covering a privately owned vehicle usually does not provide coverage for routine business use. Crime insurance policies and workers’ compensation policies also do not automatically cover all business models.

To ensure proper coverage, it is essential to contact your insurance broker and have a conversation about coverages and premiums. Be prepared for your insurer to require employee-drivers to consent to a review of their driving records before you can obtain coverage for them.

Minimum Wage Laws

A food service establishment with tipped employees that is planning to convert them into delivery drivers must consider minimum wage laws (i.e., the federal Fair Labor Standard Act and Florida’s minimum wage law). If a tipped employee is to remain a tipped employee as a driver, you must verify that the tips the newly minted driver receives are sufficient for your company to continue claiming a tip credit. Drivers may need to be paid the full minimum wage for all hours worked.

If a driver is working two jobs at the restaurant, the driver may need to be paid the full minimum wage for the restaurant-based work while still qualifying for the tipped minimum wage for hours spent in the car delivering food for tips. Maintaining complete and accurate time and payroll records record not only is required by law but is a prudent business move in the event you must defend against an unpaid wage claim.

Safety

Since a highly contagious disease is the reason for this job transformation, thought should be given to safety. Personal protections, such as training, gloves, hand sanitizer, and other general safety practices, are wise, but also consider going cashless. A cashless system allows for purchased items to be left by the front door, with a text notification of delivery. With all payments and tips made by credit card, the risk from human interactions between drivers and patrons—or even actions as simple as touching the doorbell—is greatly reduced.

Employees should also be instructed on food safety and proper handwashing techniques regarding the coronavirus, as well as reminded when to stay home from work because of illness. Specific to coronavirus, employers should consider reducing the density of staff in the kitchen and other areas of the establishment to maintain safe social distances.

Likewise, employers should consider pre-screening employees before permitting them to work. For example, does the employee have a fever and a cough? Has the employee been in contact with a person who is ill with the virus? Be careful, of course, only to inquire into the absolute necessary issues.

Workers’ Compensation

The application of Florida’s workers’ compensation law to “injuries” arising from the coronavirus is somewhat murky. The general rule, ignoring all the nuance, exceptions, and caveats, is that a worker is not able to obtain workers’ compensation benefits due to a disease that is just as common in the public domain as in the occupation.

The problem here is that the various emergency shutdown orders seem to suggest that coronavirus will be less prevalent in the public domain and more prevalent in occupations that remain open. This also gives rise to the question of tort liability being available in lieu of workers’ compensation insurance.

The details of this issue are beyond the scope of this article, but employers nevertheless should be aware of potential claims in this area.

For up-to-date news please follow our Coronavirus (COVID-19) Response Team page. 


This article is informational only. You should consult an attorney before acting or failing to act. The law may change rapidly and no warranty is given. LOWNDES DISCLAIMS ALL IMPLIED WARRANTIES AND WITHOUT LIMITATION, ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. ALL ARTICLES ARE PROVIDED AS IS AND WITH ALL FAULTS. Consult a Lowndes attorney if you wish to establish an attorney/client relationship.
Drew

Drew Sorrell's practice focuses on complex commercial issues, relating to both litigation and contract/policy drafting.


Drew has years of experience litigating business matters, intellectual property/patent infringement disputes, data breach/privacy issues, wire fraud (spoofing/spear phishing), business torts/disputes, insurance coverage, personal injury and employment litigation. Likewise, he has significant experience drafting and negotiating software licenses (SaaS), Internet service provider agreements, data privacy/breach policies and procedures, employment/services agreements as well as the indemnity and insurance coverage related to those agreements.

Initially, Drew began his legal career as a judicial clerk to Senior United States District Judge John H. Moore II, in Jacksonville, Florida, and then practiced with an AmLaw top 10 firm in Manhattan primarily in their litigation department. After spending some time as an assistant county attorney responsible for litigation, he joined Lowndes and is currently chair of the firm’s multi-discipline Cybersecurity, Privacy & eDiscovery Group.

A founding member of the Sedona Conference Group 11 (Privacy/Data Security), Drew is frequently asked to speak and write on legal and ethical issues arising from technology, including unfair and deceptive trade practices, data breach, privacy, data governance, and technology contract drafting. He is also currently serving as chair of the Orange County Bar Association Intellectual Property Committee.

Drew has argued to the United States Court of Appeal for the Eleventh Circuit, at the federal level, and the Fifth District Court of Appeal at the state level. He is admitted to The United States Supreme Court Bar, as well as the Florida, New York and District of Columbia Bars. He is admitted to practice before all federal district courts in Florida as well as the Southern District of New York.

Born in Florida, Drew roots for his adopted football team—the FSU Seminoles (because neither Rollins nor George Washington has a football team). He is a proud father of two sons who play basketball and soccer, make great grades and generally keep him very busy in his spare time.

Rachel

Rachel D. Gebaide is a member of the firm’s Executive Committee and chair of the Labor and Employment Law Group. She is an experienced employment litigator and adviser, counseling companies in the management of their human resources issues.


Rachel regularly represents employers in federal and state courts and before administrative agencies in defending against claims involving allegations of employment discrimination and violations of the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA), the Uniformed Services Employment and Reemployment Rights Act (USERRA), and other employment laws. She also defends discrimination claims arising under the Fair Housing Act.  

In addition to her litigation practice, Rachel drafts and reviews employee handbooks, employment agreements, non-competition agreements, separation agreements, and other personnel documents. She regularly advises clients regarding workplace issues and compliance with the FMLA, FLSA, WARN Act, the Affordable Care Act, and other employment laws. Rachel also has extensive experience in conducting independent investigations. 

A frequent speaker, Rachel often writes articles on developing issues in labor and employment law for client-focused publications, legal industry news outlets, and the firm’s employment law blog

Rachel is a member of the Labor and Employment Law Sections of the American Bar Association and the Federal Bar Association. She is also a member of the Orange County Bar Association, having served as Chair of the Labor and Employment Law Committee. Rachel is active in the Litigation and Employment Law Group of Meritas, a global alliance of independent law firms. 

She also serves as Executive Vice President of Congregation Ohev Shalom and Vice President, Legal of TOP Jewish Foundation. 

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