Know Your Rights A Legal Guide for Waiters, Bartenders, and Service Industry Employees

Know Your Rights

A Legal Guide for Waiters, Bartenders, and Service Industry Employees

Smashwords Edition Copyright 2013 Robert J. Wiley

License Notes: This ebook is licensed for your personal enjoyment only. Thank you for respecting the hard work of this author.

Table of Contents

Introduction

1. What's minimum wage and why am I paid only $2.13 per hour? 2. Common tip violations to watch out for

3. Tipped employees get overtime.

4. Kicking in more than 15% to the tip pool is illegal. 5. No kitchen staff in the tip pool.

6. No managers or owners in the tip pool. 7. No complicated or confusing tip practices. 8. Rules on deductions for credit card fees.

9. No taking your tips to buy your uniform, clean your uniform, or replace your uniform.

10. A restaurant cannot deduct cash register shortages from your tips. 11. A restaurant cannot deduct breakage or silverware from your tips. 12. A restaurant cannot deduct walkouts from your tips.

13. Tipped employees must be paid overtime. The direct wage increases from $2.13 to $5.76 per hour - NOT $3.20.

14. Employers must count any and all hours worked towards overtime - even if you worked in different positions.

Introduction

I am an employment lawyer. I represent employees in lawsuits against employers. It's what I do for a living. I am grateful for those clients who have put their trust in me.

This book teaches about wage theft and laws protecting tipped employees. I hope you find this material educational and informative.

1. What's minimum wage and why am I paid only $2.13 per hour?

Since 1938, American employees have been guaranteed a minimum wage. The minimum wage (as of early 2013) is $7.25 per hour. Congress changes the minimum wage from time to time.

The minimum wage is the least an employer can pay. An employer can always pay more than the minimum wage. But if you are paid less than the minimum wage, then your employer is breaking the law.

Employees who get tips are also guaranteed $7.25 per hour. However, an employer who

follows all the laws may pay only $2.13 per hour and make up the difference with tips.

So waiters, valets, bartenders, etc. get direct wages of $2.13 from the employer and a "tip credit" of $5.12 from customers. Together, the direct wage and the tip credit add up to $7.25.

Importantly, the tip credit is a privilege, not a right. An employer who does not follow

the rules is punished by losing the tip credit and cannot use tips to satisfy the minimum wage.

The rules are things like no charging for breakage, walked tabs, cash register shortages, or lost silverware. The rules also prohibit working off the clock or waiting to clock in until you have your first table.

2. Common tip violations to watch out for

The following are tip credit violations:

* Charging for walked tabs or cash register shortages * Charging for breakage or lost silverware

* Not letting you clock in until you get a customer or table

* Automatically deducting for things like meals, regardless of whether you receive the meal

* Confusing or unexplained tip practices or tip pools * Working off the clock, including unpaid meetings * Working for tips only

* Less than $7.25 per hour in your pocket (base pay plus tips) * Not recording tips

* "Tipping out" to managers, owners, the business, kitchen staff, or other non-tipped employees

* Including "behind the scenes" employees like cooks and dishwashers in a tip pool * Being forced to "tip out" or contribute more than 15% of your tips to a tip pool * Excessive credit card fees from tips (they cannot deduct more than the actual bank fee)

* Extended delays in paying tips, including credit card tips

3. Tipped employees get overtime.

The rules for tipped employee overtime are specific and must be followed. * Tipped employees get overtime

4. Kicking in more than 15% to the tip pool is illegal.

There are limits on how much an employer can make its employees pay into a tip pool. The maximum amount that you can be required to pay into a tip pool is 15% of your tips. Similarly, the maximum amount that you can be forced to tip out (for instance, bartenders tipping out barbacks) is 15% of your tips.

5. No kitchen staff in the tip pool.

Restaurants that make you tip out the kitchen are breaking the law. It is illegal to include the following workers in tip pools:

* Dishwashers * Chefs / Cooks

* Wash Room Attendants * Janitors

6. No managers or owners in the tip pool.

The law strictly prohibits sharing tips with anyone in management. This includes owners, any officer of the company, and any managers.

7. No complicated or confusing tip practices.

Employers can't have complicated, confusing, or vague tip pool rules. Employees have the right to clear notice of an employer's tip practices.

8. Rules on deductions for credit card fees.

Employers can only deduct the actual fee that they pay. You should be suspicious of credit card fees that exceed 3%.

Employers cannot delay paying tips because of "credit card processing." The tips that you are owed must be paid by the next regular pay day. Your restaurant cannot wait to pay you just because it is waiting to get paid by the credit card company.

Common Credit Card Charge Violations:

* Tacking on extra credit card charges to tipped employees

9. No taking your tips to buy your uniform, clean your uniform, or

replace your uniform.

Your tips belong to you.

10. A restaurant cannot deduct cash register shortages from your tips.

A restaurant cannot charge you for cash register shortages from your tips.

This is a common violation, in fact some employers even have a written policy of charging employees for shortages. This practice is illegal.

11. A restaurant cannot deduct breakage or silverware from your tips.

Employers sometimes have a "you break it you buy it" policy with their workers. For instance, a server who drops a tray of dishes might be told to pay the restaurant for the costs of those dishes. Or, an employer might take a specific amount out of every worker's tips each shift for a "breakage fee fund."

12. A restaurant cannot deduct walkouts from your tips.

If your boss is making you pay out of your tips for walked tabs, or if your boss makes you contribute tips to a "run tab fund," the restaurant is breaking the law.

13. Tipped employees must be paid overtime. The direct wage increases

from $2.13 to $5.76 per hour - NOT $3.20.

Overtime is a premium that you get when you work more than forty hours per week. Specifically, it's time-and-a-half pay.

For a regular hourly employee, overtime is straightforward: if you make $10 an hour, you should be paid $15 an hour starting with your 40th hour.

14. Employers must count any and all hours worked towards overtime -

even if you worked in different positions.

Here's an example of an employer breaking the law:

This is incorrect. An employer can't avoid paying you overtime by breaking up your hours.

Here's another example of wage theft:

15. Can an employer pay you a salary instead of overtime?

Scofflaw employers sometimes pay workers a salary to get around the overtime law. Not so fast.

The law says who gets to be paid a salary, not your employer. A business that pays waiters, cooks, bartenders, etc. a salary is breaking the law.

16. Common overtime and wage theft violations

* Not increasing base pay from $2.13 to $5.76 when a tipped employee works overtime

* Not paying employees for all hours worked

* Paying commissioned employees an amount that is less than the required minimum wage

* Not paying employees the minimum wage (including undocumented workers) * Misclassifying employees as exempt and paying the employee a salary when the law requires the employer to pay the employee applicable overtime wage

* Requiring employees to arrive 15 minutes early, but not paying employees for this time

* Paying employees straight pay for hours worked over 40 hours a week