There are about 600,000 restaurants in America, and many of them probably violating the wage and hour laws everyday. Waiters and waitresses are fighting back to receive the pay they have worked for and are entitled to by law. Fair Labor Standards Act (FLSA) cases are being filed nationwide against restaurants to collect tips the restaurants illegally pocketed themselves or spread between workers, and for overtime pay for hours servers have worked, but not been paid for. FLSA cases have risen 200 percent across the nation as workers sue their employers.
Labor law violations are rampant in the restaurant business and cash is one of the main reasons. Where there is cash, games are played; and small restaurants are still largely cash businesses.
Some employers also take advantage of their workers lack of legal status. Many undocumented immigrants populate the kitchens and dining rooms of the restaurant industry. Some employers mistakenly believe that they do not need to comply with the law because their workers do not have legal status, but the law applies to all workers.
Finally, there is an extraordinarily complicated set of laws governing the payment of restaurant employees. Even lawyers and accountants who are supposed to guide restaurants are often confused by the legal requirements. Taken together, these factors create an ideal recipe for violations of the law.
Workers across the country, however, are doing something about their rights. Hundreds of lawsuits have been filed against restaurants because of minimum wage and overtime violations. Even high-end restaurants have been hit. Mario Batali and other celebrity chefs have been forced to pay multi-million dollar settlements because they cheated their servers out of their wages or tips.
If you are a waiter or waitress, know the law. Keep an eye out for these top 10 violations:
- Management Stealing Tips: Owners and managers cannot take a share of the tips for themselves or to pay for kitchen workers or non-service staff.
- Minimum Wage: Restaurants are required to pay their waitstaff either a straight7.25 per hour minimum wage or a "tipped minimum wage" (5.00 per hour in New York,2.13 per hour in many other states).
- 80/20 Rule: If a server spends more than 20 percent of their time doing work that does not generate tips, they should be paid the full federal minimum wage of7.25.
- Overtime Pay: Restaurants are supposed to pay their workers extra for all overtime hours worked above 40 per week.
- Payment of Hourly Wages: Some restaurants don't pay any house pay and the waitstaff just works for tips, but waitstaff should also receive the appropriate minimum wage base pay.
- Training Pay: If training is mandatory, then an employee must be paid at least minimum wage for this time. If the trainee does not receive tips, they need to be paid the full minimum wage (7.25 per hour).
- Charging for Customer Walkouts: Waiters should not be charged for customers who dine and dash.
- Breakage Charges: Waiters and waitresses do not have to pay for broken plates or glassware.
- Uniform Maintenance: Waitstaff should be repaid if they have to purchase or launder their uniforms.
- Credit Card Fees: The restaurant can only deduct the fee the credit card company assesses for the tip. If the bill is100 and the customer leaves a20 tip, if the credit card company assesses a five percent fee, the restaurant can deduct1 from the waiters tip.