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Nasir and Matt discuss the new laws that require fast food restaurants and other sellers to post calorie information. They then answer the question, "One of my employees is consistently late in the winter and always blames weather. Can I fire them for this?"

Full Podcast Transcript

NASIR: All right, welcome to our podcast where we cover business in the news and answer some of your business legal questions that you, the listener, can send in to
My name is Nasir Pasha.

MATT: And I'm Matt Staub.

NASIR: And recording in the same room for the first time ever.

MATT: Almost.

NASIR: Almost first time ever. Well, 'tis the season to start losing weight.

MATT: A time when people probably ate a lot the entire weekend. I know I did, but I always eat a lot so it's probably about the same.

NASIR: No, I feel like I've been just eating for days since I've been in San Diego, since Thursday.

MATT: Nonstop?

NASIR: Yeah, nonstop.

MATT: Yeah.

NASIR: So, fast food restaurants, vending machines, grocery stores which isn't that uncommon, coffee shops, pizza joints — our personal favorite – are starting having to put calories up for all the items on their menu. So, a while ago, it got past where they had to put the information up. I remember going to places and seeing something on the wall like a big poster or little brochures.

MATT: Yeah, they had to have it available or something, right? Sometimes, they didn't have a poster or you had to ask for them, they'd give you some kind of brochure that they had printed out or something like that.

NASIR: Right, and I guess I should mention that it's the Food & Drug Administration that's enforcing this. When does it actually start going into effect?

MATT: Oh, that's a good question. I know these regulations are in response to some of the laws that were passed within the Affordable Care Act. It's kind of a mandatory thing here. But I don't know when it's actually supposed to go into place.

NASIR: Neither do I. So, as always, good research on our part. I think it will deter people a little bit from maybe getting some of the more high-calorie items on there even though it's fairly obviously which things have more calories and which things don't. It just has to be calories, correct?

MATT: Yeah, it says calorie information which is interesting because I think even most nutritionists would feel that that's still not enough information to make an educated decision.

NASIR: Right.

MATT: Actually, calories are important from what I've been told, but there's more to it than that.

NASIR: Yeah. Well, I hate those exercise machines that actually measure how many calories are being burnt because I feel like that's… How do they know?

MATT: Yeah. I guess, if you enter your height and weight and things like that, but even then it doesn't seem like it's accurate. I wouldn't assume anything there is correct. Well, you actually, you saw a movie last night. Was it on the popcorn that you had? Because they're going to have to start doing that, too.

NASIR: Yeah, we saw the new Hunger Games and we got one of those large popcorns and it was huge, of course. Too big for any one person or two people and, I think amongst about six or seven of us, there was free refills. We filled it up twice and were able to not even get through it all.

MATT: Multiple times I've seen you just get the things of free refills.

NASIR: Yes, that's true.

MATT: Like at that at football game when you got the giant soda.

NASIR: And then, they didn't give me the refill because I didn't have the receipt.

MATT: Yes, because you obviously brought your own cup that was specially there.

NASIR: Yeah, exactly.

MATT: I guess I should mention too that this does deal with restaurants that are 20 or more locations. So, a lot of independent places have it already so it's a requirement for these bigger chain restaurants, but not places such as Ben's Chili Bowl which is the example here.

NASIR: I'll tell you what's going to happen in response to this. My understanding is, even from a scientific perspective in measuring this stuff, there is quite a bit of variance as to the accuracy of these calories. And so, if they're way off — which I think there has been studies that have shown that fast food restaurants are misreporting some of these numbers — that that might cause more issues since now everyone is going to be doing it.

MATT: Yeah, I always wondered how they got the exactly grams of sodium — probably not grams but milligrams of sodium and all these specific details. It seems like it would vary depending on the way things have mixed.

NASIR: I don't know how they do it. I think they burn it, don't they? And see how much heat? Something to that effect, but I may be way off.

MATT: Possibly. What's interesting too, I just saw this, some types of alcohol are going to be included as well which is pretty interesting because, I guess, if you get a beer then it'll tell you how many calories are in there. I find that more interesting than you for some reason.

NASIR: Well, I don't drink. That's probably the first one.

MATT: Well, I guess I just find it interesting because if you go, I've never seen that at a restaurant. It's always just the food that's on there and you'll never really see it on the drinks. Even, like, maybe soda would probably be on there.

NASIR: What if it comes from the tap?

MATT: You're asking questions I can't answer. I didn't create this.

NASIR: I'm looking, I think it does go into effect pretty soon because they were already proposals before. I don't have a date. Even their press release doesn't say.

MATT: Yeah.

NASIR: So, I don't know what it is but it may be actually in effect now and people just have to start doing it as soon as possible.

MATT: I don't know why we can't find this either.

NASIR: If you know the answer then email us in to make us look bad.

MATT: Yeah, that's always fine. I'm always fine with people making me look bad.

NASIR: Yeah, it's very easy.


MATT: Into the question of the day, "One of my employees is consistently late in the winter and always blames weather. Can I fire them for this?" We can assume this is not in San Diego.

NASIR: Not in San Diego.

MATT: Or Hawaii.

NASIR: Must be in the Midwest, East Coast. Well, I mean, unless the weather is so nice outside, that's why they're not coming to work, they get late. They're like, "I keep getting distracted by the nice weather."

MATT: Yeah, it could be.

NASIR: But let's assume it's cold weather and it's snow or at least freezing cold temperatures.

MATT: Well, you know my rule, if anyone asks if you can fire them, I always just say yes because pretty much, if you want to fire them, just fire them — unless there's an illegal reason not to do so, right?

NASIR: Yeah, and being late, you can fire someone for that. I mean, there's probably examples where you couldn't like, if they were disabled and the snow or ice on the ground is causing them to take longer to get in. It's still tricky but it's like when I worked places, when it was snowing, I just would have to factor that time in. Even in San Diego, if there's a Chargers game, you have to factor that traffic into your equation.

MATT: Or, in San Diego, if it rains, right? The whole world shuts down as if there's no business going on.

NASIR: People hate the rain here.

MATT: We actually dealt with some of the stuff even when Hurricane Sandy or right now in Buffalo, right? There's crazy weather in New York. Even if there's like a state of emergency and you open your office and your employees don't come or are late, you're still allowed to terminate your employee for that. Now, there might be some other implications for that, especially if you make your employees come into work and they get into an accident and so forth, whether you are liable for that, probably not, but it may expose you to liability at least as far as someone wanting to sue you. But, in general, it's pretty well-established that you can terminate your employee for those reasons.

NASIR: Yeah, and what I would say to the employer is just make sure, when it's getting closer to getting colder, just send them a little thing saying, "Hey, keep in mind that the weather is going to get bad so you'll have to factor this into your travel time."

MATT: Exactly. Unless the boss is doing this, too.

NASIR: And you can always fire yourself as a boss. But just don't do it for illegal reasons like for discrimination.

MATT: There's only a couple of times when we didn't deliver pizzas — when I worked at that pizza place — because the weather was so bad. This was before there was, like, GPS on phones and stuff, too. So, I was basically looking at a map in my car, all the street signs and mailboxes were covered in snow and it's snow on the ground, dark, no lights anywhere. It's pretty impossible to find anything. So, that wasn't fun. And people didn't even give better tips. That was the worst part.

NASIR: They would not?

MATT: Yeah, it would be the same because some people would give the exact same tip every time no matter what. So, I knew, like, when those people would call in, I would know whether to take them or give them to somebody else. Like, "Oh, I'll take this one real quick," because I knew it's a good tip. This one guy always tipped $1.00.

NASIR: That's a little sneaky, Matt.

MATT: Yeah. Well, that's why the business isn't around anymore.

NASIR: Because all the tips being taken.

MATT: There would be nights when I would work in the restaurant the entire time and I'd have some other kid take all the deliveries and he ended up making more money than me because he would just get all the delivery money in addition to what he gets paid normally. He'd be like, "Man, look at all this money I made." It's like, "Yeah, I did all the work. You just drove around." That was frustrating. I like the places that share tips.

NASIR: Oh, like a pool?

MATT: Yeah.

NASIR: Yeah, we should talk about tipping a little bit because there are some states that prohibit employers from even touching the tips, where others allow you to do that, but tipping affects minimum wage. So, we'll get to that one of these times.

MATT: I think we've talked about it in a question once.

NASIR: Yeah, you're probably right. But did we answer this question? Can I fire them for this? I would say yeah, right?

MATT: Yeah. I mean, it's the same thing as firing someone for just being late all the time.

NASIR: Exactly.

MATT: So, it's just another reason.

NASIR: Yeah, they just have to leave more time to get to work.

MATT: Yeah.

NASIR: Just like everyone else, frankly.

MATT: Yeah. I mean, if you had a court date and you missed it, or if you had a flight, you can't show up to the airport and say, "Oh, bad weather. Give me a plane."

NASIR: Both great analogies — court and flights.

MATT: All right. Well, I think that's our episode for the day.

NASIR: Keep it sound. Keep it smart.

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Legally Sound | Smart Business covers the top business stories with a legal twist. Hosted by attorneys Nasir N. Pasha and Matt Staub of Pasha Law, Legally Sound | Smart Business is a podcast geared towards small business owners.

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