WRA Resources

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The WRA is committed to providing the best quality, value and services to meet your needs. We strive to keep our members and the public informed about critical issues that impact the foodservice and hospitality industry. Through national and local resources the WRA gathers information to provide current news, trends, regulatory changes and operational guidance.

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The Front Burner

Q&A

Question: Am I required to pay employees holiday pay or time and a half for working on a holiday?

Answer: No, holiday pay is a matter of company policy or agreement between an employer and an employee. If an employee works a holiday, you are required to pay their normal wages for hours worked. A restaurant may be open 365 days of the year if the owners choose. It is not vital to include a section on holidays in your employee handbook but many employers do so employees know what to expect as holidays approach.

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Are there requirements for restaurant employees to inform their manager if they are ill?

Answer: Yes. The Wisconsin Food Code requires employees to inform the manager on duty if they are sick with certain types of illnesses or symptoms including vomiting or diarrhea. If an employee has had diarrhea or has been vomiting, they cannot return to work until 48 hours after the symptoms have ceased.

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Can I pay a teenaged employee less than the minimum wage?

Answer: Employers can pay 14- to 19-year-old employees an opportunity wage of $5.90 per hour for the first 90 calendar days on the job.

Download the PDF

Am I required to give my adult employee breaks?

Answer: The Department of Workforce Development recommends, but does not require, that employers give breaks to adult employees over age 18 (close to usual meal periods). Under state law, any break of less than 30 minutes must be paid. Breaks that are 30 minutes or longer may be unpaid.

However, Wisconsin law does require employers to give employees under the age of 18 at least a 30-minute meal break if the employee works more than 6 hours. The break may be unpaid. You must document when the break begins and ends. The minor may not waive the break.

Download the PDF

Are there any circumstances where a patron who is under 21 years old could drink alcohol in a bar or restaurant?

Answer: A minor (under 21) can drink if accompanied by a parent, guardian or spouse of legal drinking age. Some people question whether this exception still applies to people ages 18-21. Parental rights do not cease at age 18, a parent is still a parent whether their child is 17 or 71. So an 18-, 19- or 20-year-old can drink with their parent, guardian or spouse of legal drinking age.

However, an establishment can have a policy not to serve anyone under 21 even if they are with their parent, guardian or spouse of legal drinking age. If this is the policy, it must be enforced the same for everyone.

Download the PDF

Is the gas used in soda and beer exempt from sales tax?

Answer: Yes, CO2 is considered to be exempt from sales tax. You can provide a fully completed sales and use tax exemption certificate (Form s-211 or S-211-SST) to your supplier when purchasing CO2 used to make tap beer and fountain soda that you sell in your restaurant. Your purchase is an exempt purchase for resale. Additionally, any charges the CO2 supplier makes to you for the cylinder are also exempt from sales and use tax.

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Can an employee quit and demand that a final paycheck is provided right away?

Answer: No. When an employee quits, you don’t need to pay them immediately, cut a special payroll check or make other special arrangements. Just make sure the employee receives their last paycheck no later than the next regularly scheduled payday.

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Can an employer deduct money from a salaried employee’s check because they missed work due to jury duty?

Answer: Not unless the employee is gone the entire week. However, you can deduct the amount that the employee receives from the court as jury pay. Employers can require that the employee make up any lost time with other paid leave (vacation or PTO) provided that there is no lessening in the total amount received by the employee in that workweek.

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Can teen employees use lawn mowers and weed wackers?

Answer: Lawnmowers and weed whackers are off-limits for 14- and 15-year-olds, but OK for 16- and 17-year-olds. They fall under the Department of Workforce Development’s category “lawn and garden equipment, including power-driven mowers or cutters and sidewalk type snow blowers.”

As with teens operating golf carts, 16- and 17-year-olds operating riding lawn mowers may not use them on public roads. In this case, both the federal and state laws are the same: yes to 16- and 17-year-olds and no to 14- and 15-year-olds.

Download the PDF

Can a 20-year-old employee who is a licensed bartender close the restaurant?

Answer: A licensed bartender has authority at the licensed premises to sell, serve, close bar and provide supervision by virtue of his/her having the operator license and does NOT need to be 21 to do so. However, the bartender must be at least 18 years old.

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Is it legal for the parent of a teen employee to pick up their child’s paycheck?

Answer: The parent is the guardian of the minor and has control over the check and can, therefore, pick up their child’s paycheck (unless the teen is an emancipated minor).

Can an employee waive their right to be paid overtime pay if they work more than 40 hours per week?

Answer: Absolutely not! Employees cannot waive their rights to overtime. Any agreement to waive overtime pay is not legally valid.

Download the PDF

Can a restaurant employee legally work seven days a week?

Answer: There is a Wisconsin statute that deals with this issue (103.85) that states “one day of rest in seven.” However, this statute does NOT apply to restaurants. It specifically states that a “person employed in bakeries, flour and feed mills, hotels and restaurants” is excluded.

This means that you do not have to ensure that employees get a day off each week. However, you may want to factor in possible overtime when deciding how to schedule employees.

Also, keep in mind that 14- and 15-year-old employees can only work six days a week.

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Does Wisconsin really have a “Butter Law” or is this just urban legend?

Answer: There is indeed a butter law here in America’s Dairyland! Stat. 97.18(4) states, “The serving of colored oleomargarine or margarine at a public eating place as a substitute for table butter is prohibited unless it is ordered by the customer.”

You may use margarine for baking and cooking without first getting customer’s permission. However, you should be aware that the butter you put out on the table must be pure butter or a mix of individually packaged butter and margarine “reddies” (with the majority being butter).

Also, the butter must be graded via the Wisconsin grading program. Imported butter that has not gone through the DATCP grading system cannot be sold in Wisconsin. 

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Can an employee be sent employee home earlier than the end of their shift if there isn’t enough work for them to do - and can you pay them only for the hours worked?

Answer: There is no minimum number of hours for which an hourly employee needs to be paid.  They need to be paid only for hours actually worked. 

According to the Department of Workforce Development, some employers pay "show up" pay as a benefit, however, it is not required. 

Keep in mind, this is an issue which may cause increased employee turnover due to frustration with your scheduling practices. 

Also, if you send employees home early too frequently, it can become an unemployment compensation benefit issue (even for part-time employees).

How do you handle the paycheck for an employee who only worked a few days and then quit?

Answer: All wages paid to an employee, no matter the amount, must be reported to the IRS on your quarterly reports and year-end reports. The easiest way to do this is to enter all employees and wages on your payroll. There is nothing in the code that states that wages under a certain amount don’t need to be put on payroll; all employee’s wages should be reported on your payroll. 

As an employer, you are also required to pay the employer’s portion of social security and Medicare taxes and withhold and report the employee’s taxes:

  1. Social security and Medicare taxes on the employee's wages
  2. Federal income taxes on the employee's wages
  3. State and local taxes imposed on the employee's wages

Reminder, all new hires as of January 1, 2020 must complete the Wisconsin Department of Revenue Form WT-4 and the IRS Form W-4

Does OSHA require that restaurants have a first aid kit on hand?

Answer: OSHA requires businesses to have a first aid supplies on hand. Per OSHA, “In the absence of an infirmary, clinic or hospital in near proximity to the workplace which is used for the treatment of all injured employees, a person or persons shall be adequately trained to render first aid. Adequate first aid supplies shall be readily available.” A kit is good to have but the agency does not stipulate what exactly must be included in the first aid kit. Be sure to maintain your kit with supplies adequate to treat your most common injuries.

More Info from WRA

More Info from OSHA

Article from Safety and Health Magazine

Does an employer have to chip in money if a tipped employee does not earn enough tips to cover the difference between the general minimum wage and the tipped wage?

Answer: If over the work week, an employee does not receive enough money in tips plus actual base wages to bring him or her up to the full minimum wage, the employer must increase the base wages to make up the difference. This adjustment may be paid at the normal pay period.

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Can a 15-year-old teen work later than 7:00 pm?

Answer: Minors under 16 years of age are only permitted to work until 7:00 p.m. after Labor Day through May 31 ( weekdays AND weekends).  Between June 1 and Labor Day, this same age group is permitted to work until 9:00 p.m. 

The Wisconsin Department of Workforce Development sets time of day and hour restrictions which mirrors the US Department of Labor for minors under the age of 16.  Violations can be serious.

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Do restaurants need to pay employees for their time spent in staff meetings?

Answer: Most meetings at work are going to be considered working time and will require employers to pay employees for their time.

Federal and Wisconsin state laws require that meetings, lectures, and other training be paid UNLESS four criteria are met:

  • Must be outside of normal working hours
  • Must be in fact voluntary
  • Cannot be directly related to the employee’s job
  • No other work is being performed during such attendance

All four criteria must be met in order for the staff meeting to be unpaid.

Keep in mind, tipped employees have to be paid at least the full general minimum wage for attending a work related meeting since they don’t have the opportunity to earn tips during that time.

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Do restaurants need to have a work permit on file for 16- and 17-year-old employees?

Answer: Not any longer. As of June 2017, Wisconsin law changed and therefore 16- and 17-year-old minors are no longer required to obtain a work permit.

Keep in mind, 14- and 15-year-old employees still need to obtain a work permit prior to starting work.

 

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Can a restaurant be sued for its website not being ADA compliant?

Answer: Yes. If a restaurant’s website and/or mobile app do not meet guidelines for accessibility by disabled guests, the restaurant may be vulnerable to costly lawsuits. There have been a number of class action lawsuits that have been filed against restaurants and retailers for their websites being deemed not accessible.

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Is a restaurant required to provide water for a customer's service dog?

Answer: Restaurant staff are not required under ADA to provide care or food/water for a customer’s service animal.  Staff can offer water in a disposable dish but it is not a requirement.

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Does a restaurant need to post bartender licenses so that they are visible?

Answer: During licensed premise checks conducted by Department of Revenue (DOR) Alcohol & Tobacco Enforcement Unit agents, they typically just ask that the operator’s licenses are produced upon request. It could be that a local jurisdiction (police department/sheriff) views this differently but this is DOR’s approach. 

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Is it possible for a tipped employee to have a zero paycheck?

Answer: Yes, if tipped employees are paid out their cash tips at the end of each shift, they are taking home their GROSS wages…wages that still need to be taxed. This can create a shortfall of funds when all taxes need to be withheld on all gross income depending on the amount of tips earned.

The issue is compounded if credit card tips are paid out at the end of each shift which is one reason why it is recommended that charge tips be paid out via payroll.

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Am I required to pay employees holiday pay or time and a half for working on a holiday?

Answer: No, holiday pay is a matter of company policy or agreement between an employer and an employee. If an employee works a holiday, you are required to pay their normal wages for hours worked. A restaurant may be open 365 days of the year if the owners choose. It is not vital to include a section on holidays in your employee handbook but many employers do so employees know what to expect as holidays approach.

Can teens work more hours if they have a partial week of school due to a school in-service day, parent conferences or holiday break?

Answer: No. The Department of Workforce Development indicates that employees under the age of 16 can only work up to 18 hours during a school week, even if there’s only one school day in the school week. If there is no school the entire week, then employees under age 16 can work up to 40 hours.

Reminder: make sure to be mindful of required breaks for all staff under age 18.

Do you need to complete the form I-9 for an employee if their parent already works for your restaurant?

Answer: Yes, all staff that you hire must complete the form I-9.

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Is it a Food Code violation for foodservice staff to wear fake or polished nails?

Answer: No. It is not a Food Code violation. Restaurant employees may have fake or polished fingernails as long as they wear gloves while engaged in food preparation.

Waitstaff can serve food without gloves, but must put them on when directly working with food, such as preparing a customer’s salad.

You can create a policy for your establishment that no employees are allowed to wear fake or polished fingernails. The issue of nail polish and fake nails is something you can decide in your grooming/dress policy. The key is to make a policy and then enforce it consistently.

Is it a Food Code violation to hang live plants in a restaurant’s dining area?

Answer: No. It is fine to display live plants in your dining area. You may want to avoid flowering plants because they are more likely to bother customers with allergies and may also produce an odor (even if it is a pleasant odor) that could possibly bother some customers.

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Are food prep employees required to wear a hairnet as a hair restraint?

Answer: No. The Wisconsin Food Code does indeed require hair restraints, but not specifically hairnets to prevent hair from coming in contact with food, equipment and utensils. Counter staff and servers are not required to have hair restraints if they pose a minimal risk. 

There are no specifics that dictate at what hair length hair restraints are required, because it depends on the person, their own personal hygiene and their job tasks. Most shorter haired people can wear a hat. A good rule of thumb is that if the hair falls forward over food and work surfaces during job tasks, then a ponytail or other restraint would be warranted. 
Hair restraints must be able to effectively restrain the hair. Headbands do not cover the entirety of the hair region and therefore would not qualify as a restraint.

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Can a restaurant make croutons or breadcrumbs out of the uneaten rolls that get returned to the kitchen in bread baskets?

Answer: No. You cannot re-use food that came in contact with customers, even if it appears to have been untouched. The Wisconsin Food Code specifies that “after being served or sold and in the possession of a consumer, food that is unused or returned by the consumer may not be offered as food for human consumption.

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Can hand sanitizer can be used as a substitute for handwashing by restaurant employees?

Answer: No. The Wisconsin Food Code does not allow hand sanitizers – preferably called hand antiseptics -  as a replacement for handwashing.  However, if used immediately following proper handwashing, hand antiseptics provide an additional barrier to cross-contamination. It is important to note that ingredients used in hand antiseptics must be approved as food additives in order to be used in the retail and foodservice industry. Check with your chemical supplier to see what approved hand antiseptics they offer.

Alcohol-based hand gels are effective against some bacteria but have minimal effect on viruses such as Noroviruses and the Hepatitis A virus.  In addition, the foodservice environment involves the presence of wet hands and fatty materials on hands, and research has demonstrated that hand sanitizers do not remove these materials effectively.

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Is it true that employees that are hired from now on must complete the Wt-4 AND the W-4?

Answer: Yes, it appears to be true. Since federal allowances have been removed, the redesigned Form W-4 cannot be used for Wisconsin purposes.

FAQ on W-4
WT-4 Info

Are restaurants allowed to deduct credit card processing fees from servers’ charged tips?

Answer: Credit card processing fees can be deducted from servers’ charged tips.  For example, where a credit card company charges an employer 3 percent on all sales charged to its credit service, the employer may pay the tipped employee 97 percent of the tips without violating the Fair Labor Standards Act (FLSA). 

Keep in mind, this charge on the tip may not reduce the employee’s wage below the required minimum wage.

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How long are businesses required to retain business tax returns?

Answer: How long to keep records is a combination of judgment and state and federal statutes of limitations. Since federal tax returns can generally be audited for up to three years after filing and up to six years if the IRS suspects under-reported income, it’s wise to keep tax records at least seven years after a return is filed. Our sources recommend that tax returns be kept permanently. Requirements for records kept electronically are the same as for paper records. 

Answer provided in consultation with EWH Small Business Accounting SC.

Is a restaurant able to buy a small quantity of alcohol from a liquor store to sell in the restaurant?

Answer: No. Wisconsin state statute requires retailers to purchase alcohol from a Wisconsin wholesaler. No exceptions. You must have an invoice for all purchases of liquor, wine and beer. And you may only purchase alcohol from a Wisconsin wholesaler. Refer to Publication 302, section XIII.

More Info on Alcohol Laws

Summary of Alcohol Laws for Retailers

Are fines very high if a restaurant doesn’t follow labor laws regarding the allowed hours for teen employees?

Answer: Yes. A You don’t want to mess around here. Fines can be in the thousands of dollars and can be very high for willful or repeated violations of federal teen labor laws. Breaking Wisconsin law, the first time, will cost you up to $1,000 for each offense and imprisonment up to 30 days. A second violation within 5 years can be punished by up to $5,000 and 30 days jail time for each offense. Remember, each day a violation occurs is considered a separate and distinct offense.

Teen labor restrictions may make scheduling difficult, but ignoring them could put you out of business.

Are back of the house staff allowed to wear shorts?

Answer: The law doesn’t forbid shorts (or open-toed shoes for that matter), but you certainly may prohibit them as part of your dress code policy.

Employers have a lot of latitude when it comes to dress code. Wisconsin’s Food Code only requires clean outerwear and proper hair restraints for food prep workers. Beyond that you can establish any clothing or grooming policies you believe are appropriate for your restaurant. The key is to enforce your policy consistently once you establish it.

When things are hot in the kitchen your employees may not necessarily see that long pants and closed-toe shoes make sense from a safety standpoint, but ultimately it is your decision.

If you are located in the city of Madison, pay special attention to the City Ordinance regarding physical appearance.  More Info on City of Madison ordinance. 

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Can restaurants use an air dryer at their handwashing sink for employees to dry their hands?

Answer: No. The Wisconsin Food Code requires that handwashing sinks need to have individual disposable towels for employees to dry their hands after handwashing.

Is my restaurant in trouble if we don't have an employee with a current Certified Food Protection Manager Certificate during the pandemic?

Answer: The Department of Agriculture Trade and Consumer Protection has indicated that businesses will NOT be penalized for having an expired certificate during the COVID-19 pandemic.

Due to the cancellation of Certified Food Protection Manager courses, DATCP is extending the requirement to renew this certification by 90 days after courses resume. If your certificate expires, you can continue operating as usual.

WRA’s ServSafe Classes have resumed.
See the ServSafe schedule and register for upcoming classes

More Info 

Can a customer bring in their own container to take home a meal?

Answer: No. Allowing customers to bring in their own container for a take home meal that requires time/temperature control for safety is a violation of the Wisconsin Food Code 3.304.17 Refilling Returnables. That would include most food prepared in a restaurant.

The science behind the code is that a restaurant or grocery store has no control over how the container was washed/sanitized, therefore it has no control to what contaminants may be inside or on the outside of the container. This introduces risk to the establishment. If the inside was contaminated, then the take home food will also be contaminated, possibly causing a foodborne illness that was not the fault of the establishment. If the outside was contaminated, then that virus/bacteria could have been introduced into the restaurant.

WI Food Code – See Info on Page 512

Can I sell mixed drinks in a covered and packaged container made by our restaurant/bar?

Answer: No. You cannot sell mixed drinks for carryout at this time. We have heard that some restaurants and bars are doing it, but it is illegal.  You can sell kits that include the mixer and a sealed bottle of alcohol.

WRA has been lobbying legislative leaders and the Governor to allow this practice during the pandemic (as long as drinks can be packaged in a way to prevent folks from drinking them while driving), but it has not moved forward into policy at this time. We will keep our members in the loop if this is accomplished.

Can restaurants allow patrons to have their dogs with them on outdoor patio areas?

Answer: There are changes in the Wisconsin Food Code taking affect October 25, 2020. One of the changes eliminates the need for a variance to allow dogs on patios after that date. Code rules need to be followed, just no need for a variance.

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Can an employee quit and demand that a final paycheck is provided right away?

Answer: No. When an employee quits, you don’t need to pay them immediately, cut a special payroll check or make other special arrangements. Just make sure the employee receives their last paycheck no later than the next regularly scheduled payday.

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During these COVID times, are high velocity hand dryers still safe to use in public restrooms?

Answer: Yes, hand dryers are safe for customers to use in public restrooms, although the preferred method continues to be single-use hand towels.

However, each sink used for employee handwashing must be provided with individual disposable towels per the Wisconsin Food Code. After proper handwashing with soap and water (including under your nails) for 20 seconds or more, it is also important to thoroughly dry your hands. According to the CDC, germs can be transferred more easily to and from wet hands. Therefore, hands should be thoroughly dried after washing. Again, the Wisconsin Food Code requires that employees use single-use towels for hand drying and each handwashing sink or group of adjacent handwashing sinks shall be provided with individual disposable towels. Refer to section 6-301.12 (page 576) of the Wisconsin Administrative Code ATCP 75 Appendix.

More Info

Handwashing Posters from WRA

CDC Handwashing - How and When

Handwashing Fact Sheet

Must I allow my employee time off to vote?

Answer: Yes. Employers must allow those employees who are entitled to vote time off from work for up to three hours while the polls are open. This is regardless of whether the employee would appear to have sufficient time to vote either before or after his or her scheduled shift.

Time can be unpaid for non-exempt staff. You can be faced with a fine if you don’t allow the time off so save the headache and work out a compromise if it is inconvenient.

There are some notice requirements so view all the rules here.

For Your Information

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Updated Wisconsin Food Code Expected to Go Into Effect October 25, 2020

The ATCP 75 Administrative Rule and Appendix A-Wisconsin Food Code has cleared the legislature and has been published in the state register. October 25, 2020 is the expected implementation date.

 

See Updated Wisconsin Food Code

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FYI

Handling Property Damage

If you have had damage to your building, property or inventory, we urge you to reach out to your insurance company and your business insurance broker right away. Chances are you have coverage for this type of damage.

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FYI

Straw Use Ordinances

Three Wisconsin municipalities now have straw use laws:  Madison, Milwaukee and Wauwatosa.

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Dogs on Patios

FYI

Dogs on Patios

See the latest info on allowing dogs in outside seating areas of your restaurant.

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FYI

Scams Targeting Restaurants

Resourceful con artists are always coming up with new ways to fleece money from people. Some scams seem perfectly designed to take advantage of restaurant operators—since it is a restaurant owner’s nature to be a hospitable and welcome new business.

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norovirus

FYI

Sick Employee Policy

Make sure your employees know that the Wisconsin Food Code requires them to inform the manager on duty if they are ill with certain types of symptoms or illnesses.

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Member Benefits

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Member Benefit

Employee Engagement Playbook

The latest stats, resources, best practices, peer-to-peer advice and some budget friendly suggestions to help restaurants engage with employees and create a more positive workplace culture.

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Member Benefit

Allergen Awareness Poster

The Wisconsin Restaurant Association developed a free poster to help restaurants inform their staff and customers about food allergies.

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Member Benefit

Social Media Crisis Kit

It’s a new landscape for businesses because of the incredible power that social media wields these days. Many restaurant owners have told us that they feel unequipped to deal with these situations. 

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Chef washing hands

Member Benefit

Hand Washing

Handwashing is the most effective means of preventing the spread of bacteria and viruses and can prevent contamination of food, utensils and equipment.

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Owner and Chef Discussion

Member Benefit

Employee's Record File

WRA wants to help you get (and stay) organized and make sure you’re in compliance with recordkeeping requirements. We’ve created these personnel files as another valuable member benefit. 

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