Woman v. Woman

I know that many of you are familiar with the report on AOL: California Waitress Sues Over Skimpy Uniform Requirement.  In short, the details are that Courtney Scaramella was an employee in good standing at O'Hara's bar in Los Angeles. The owner, Jack Bendetti, changed the policy to require female employees to wear extremely short, plaid mini-skirts to expose their bodies and lure male patrons. These skirts were held together only by velcro; therefore, they could easily fall off or worse, be torn off.

According to the report on AOL:


"In her complaint, Scaramella said that she feared drunk customers could easily tear off the skirt, which was held in place by Velcro. The court document also note instances in which Bendetti offended the waitress, the Daily Bruin reports.


Those instances include one in which Bendetti allegedly required bartenders rate female customers on a 10-point scale and then give a free shot of alcohol to the women given a score of six or higher."


Sounds like a hostile work environment to me.

Scaramella claims that none of the female employees wanted to wear the new "uniform," but as jobs are extremely hard to come by nobody wanted to quit before obtaining a new job.

After a few days, Scaramella refused to wear the skirt. For this, she was terminated. Scaramella is only 23 years old, and has been and is doing an excellent job of standing up for herself. I know women 50 years of age and older who are unable to do this. I am proud of Ms. Scaramella, and I hope she is reading this.

I was dismayed to read a entry on CafeMom that opined that the bar waitress should not sue for sexual harassment and just go get another job. We all know that employers are begging the unemployed to come work for them, so that would have been extremely easy.

Worse of all, the opinion piece was written (supposedly) by a woman. Shame on you, Maressa Brown. Yes, having a vagina does mean you should know better. Unless, of course, you are a prostitute and used to using your vagina to make money. (Anybody think Congress will sanction me?) ;-)

Brown rolls her eyes at the idea that a young woman would complain about a predatory employer using her body as bait to lure in more predators who will spend money for the chance at a peep show.

While Brown is awake enough to admit that the new policies were sleazy, she does not feel that the situation was bad enough to warrant a lawsuit. These are the insults, indignities, and damages that Brown thinks to do not warrant a sexual harassment and wrongful termination lawsuit:

* Placing fans around the establishment in an attempt to blow the skirts up "Marilyn Monroe" style.

* When Scaramella complained that it was difficult (to say the least) to bend over in the skirt, the boss's reaction was, "Oh, yeah!!!" (If you have never worked in a restaurant, we have valid and necessary reason to bend over all the time.)

* As stated above, the extremely short skirts were held together by nothing but velcro. That sounds like an invitation for inappropriate horseplay.

* As stated above, male bartenders were instructed to rate the sexual attractiveness of female patrons, and reward those they approved of with free shots.

Treating women like a set of body parts for the enjoyment of men is sexual harassment. Both employees and patrons were treated this way under the new policies.

Brown is quick to point out that Bendetti claims Scaramella quit and was not fired. I'm not surprised he would claim this in his defense. When a restaurant does not want you anymore, they take you off the schedule. It is the equivalent of firing, and most likely what happened. 

Apathy is necessary for predators and evil-doers to succeed. When good people stand up for themselves and for each other, we help put a stop to victimization. Bendetti victimized Scaramella. Scaramella is courageous for standing up for herself and being in the public eye. I would expect middle aged, male slobs to have bad words for her, but Brown? Shame on you, Brown. Shame.

Dirt on Darden

Extremely interesting question has been posted on Avvo.com, a site on which people ask questions of lawyers. (Real lawyers, not like me. ;-))  A Darden employee writes:

"I work for Darden Restaurants. They have recently announced they are removing servers from our restaurant due to a policy change that would allow servers to take more tables reducing the amount of labor required. In stead of laying off people a multiple choice personality test was given in which corporate (no one that actually works at the restaurant) would make the decision who would remain a server and who would be turned into a servers asst (making less money). The test questions were offensive to me, invasive and many of them non related to the job and because of how I answered them I was demoted. My management team informed me they did not agree with the situation but that there was nothing they could do because it was a corporate decision. I was not hired to do this job. What to do?"

Wow. Remember, Darden Restaurants own the following brands: Olive Garden, Red Lobster, Longhorn Steakhouse, The Capital Grille, Bahama Breeze, Seasons 52, and Eddie V's. Darden Restaurants have also earned the ire of ROC United, a restaurant worker's advocacy group.

Based upon the above quote, it seems that Darden Restaurants is demoting some of their servers and making them server assistants. If the server assistants earn the full minimum wage, which is set to $7.25 per hour on the federal level, then this does not seem like a money saving scheme. So I did a little digging.

Darden Restaurant Wages

GlassDoor is a website on which people may anonymously post salary and wage information from where they work or have worked. According to GlassDoor, average server pay at Darden Restaurants is $4.37 per hour, before tips. Tips were averaged at about $16,000. Averages are around the country and per year.

GlassDoor reports indicate that server assistants average  $5.98 per hour and less than $8,000 in tip outs per year.

Remember, these are averages. The fact that server assistants are making less than $7.25 per hour indicates that they are paid as tipped employees. They may or may not make a little more per hour than servers at individual locations, but their average annual tips equal less than half the server's tips. Darden is not paying out substantially more money, but server assistants are making less than half what servers are making, including tips.

That is quite a demotion for the former servers turned server assistants, and no additional money spent by Darden.

Human Resource Management

While those who have just been demoted to server assistant must be seething, those who remain servers are in the unenviable position of benefitting from the misfortune of others. And those others are expected to act as the servers' assistants. Right.

Because they will have help from server assistants, servers will be able to take more tables, which means more tips, which means more money for the servers. However, the "help" they are to receive is coming from people who are likely experiencing legitimate anger and may be willing to commit sabotage. I don't condone sabotage, but sometimes I understand it.

This entire situation is ill-thought out and turns employee morale into a train wreck. Corporate chimps should probably be sent back to the jungle where they belong. Real managers know how to help people work better together. Real managers know this is not the way.

Personality Testing

The thing that interests me the most is how the unlucky demotees were chosen. Corporate chimpanzees sent multiple choice personality tests for the servers to fill out. Based upon their answers, they got to remain servers or were demoted to server assistant.

What I would give to get my hands on that test... I want to see it so bad I can taste it. While I do not have it and can not pick the actual test apart, I can discuss ethical considerations involved in giving employees personality tests.

It is unlikely I will ever see that test, as much as I would like to. Those who give psychological tests to employees tend to defend their right to keep the content of the test secret. One problem with test questions and scoring rubrics becoming public is that then the test becomes useless. For example, if everybody knows you have to say you like cats to get the job, people who detest cats will lie to get the job. (Make sense?)

Only qualified "users" may give and interpret personality tests. A "user" in this case means the person who gives the test to somebody else and interprets the test. The Task Force on Test User Qualifications (TFTUQ) was formed, in part, to clarify and define what it means to be qualified to give and interpret such tests.

Qualified test users must have a good understanding of statistics. Many tests ask the taker to give answers that are open to interpretation; test users must understand qualitative statistics, descriptive statistics, and item response theory. They need to be able to interpret how reliable test measurements are, and how valid test scores are. Corporate chimps and bean counters are unlikely to have such qualifications.

Ethical obligations on the part of psychologists who use personality tests are are heavy: they must use the utmost professional care when evaluating workplace tests because their findings and recommendations may (and in this case, did) affect an individual's career and income-earning potential.

My questions for the test takers at Darden Restaurants:

* Were you asked to give informed consent before you took the personality test? Did you understand that you could be demoted based upon your test answers?

* Were you guaranteed confidentiality, meaning your test answers would not be made public? This also means people not involved in interpreting the tests should not have access to your test answers. If they do, your name is removed.

* Was there a time limit imposed on the test? For example, were you given just one hour to complete?

* Was a qualified test user present during the test? Or did you just take it home and bring it back later?

* Were you treated with respect and common courtesy?

These are just some of the ethical obligations psychologists have toward test takers.

Is Darden Becoming Wal-Mart?

Barbara Ehrenreich first wrote "Nickel and Dimed" in 2001. The 2008 edition includes additional commentary by the author. She went "undercover" as a poor person. She was testing just how easy it is to get by working at low wage jobs. She held various positions during her experiments; one was at Wal-Mart. To apply to work at Wal-Mart, she had to take a personality test. The person who handed it to her was a Wal-Mart manager, not a psychologist. When she finished filling out the form, it was fed through a computer to score. 

Ehrenreich discusses the experience on pages 124 and 135. While she was told there were "no wrong answers," she was also told by the Wal-Mart manager after the scoring that her answers to three of the questions required "further discussion." The test had questions such as, "There is room in any corporation for a non-conformist." The answer desired by Wal-Mart was "totally disagree." According to Ehrenreich, the Wal-Mart test was designed to find people who did not question authority and would do as they were told. Free thinking was discouraged.

It is possible this "personality test" was not developed by any psychologist; based upon Ehrenreich's descriptions it was quite obvious and transparent. It may have been designed not to truly test, but rather to intimidate into giving the right answer. This way, future employees of Wal-Mart were forewarned how not conforming to Wal-Mart’s standards would most likely result in termination.

In any case, Computerized Psychological Testing (CPT) is not immune to ethics in psychology. CPT should be used in conjunction with professional review.

Back to our hapless victim at Darden. S/he claims that the questions were personally offensive and seemed irrelevant. Managers are claiming their hands are tied because the corporate chimps made the decision from above. This person is rightly angry about the situation.

The last sentence: "What to do?" I am not a lawyer, but I am familiar with how corporate lawyers will circle the wagons to protect employee test data. I hope this sounds neither impossible nor like a cop-out, but the best thing to do is to get a job working for humans and avoid Darden like plague.

I wish this person the best.

Kucik v. Castle: The Plot Thickens

The story about John Castle breaking his waiter, Paul Kucik's finger has been reported in various online news sources, including ABC News and the Huffington Post. The incident happened back in January, and (a little late to the party) I wrote about it here recently. If you search for information about these allegations, you will find many write-ups about Castle committing assault and battery on Kucik.

As some of you know, I received a comment from a self-reported lawyer representing John Castle. It is less easy to find write-ups of Castle's side of the story, but I did a little more digging thanks to the comment. The plot thickens.

One thing that interested me is that Kucik has not pressed criminal charges against Castle. According to the Palm Beach Police, if there is no victim then there is no crime. However, according to one of my "legal eagle" friends, victims don't press charges; the prosecutor decides when to press charges in criminal matters. Perhaps if the alleged victim were more interested in charges being pressed, the D.A. would be more likely to consider it.

I have yet to find any public comment on the incident by the Club's management or the owner, Daniel Ponton.  

Kucik has sued Castle in civil court.

The allegations in Kucik v. Castle are straightforward:
* Castle's wife asked for check.
* Kucik handed Castle the check.
* Castle became irate, grabbed Kucik's hand and broke Kucik's finger.
* Damages sought exceed $15,000.
* Kucik wants a trial by jury.

Castle's lawyers filed Amended Answer, Affirmative Defenses and Counterclaim.
* Castle admits he was dining at the club with his wife on the date of the incident.
* He admits that a waiter handed him the check.
* He does not "admit" whether that waiter was Paul Kucik.
* Denies everything else.

I need to remind all readers before I delve into this that I am not a lawyer; I write this blog out of personal interest in the underbelly of the restaurant industry. While I began this journey biased toward Kucik, I am interested in the truth.

I write to divulge information and to entertain. I do not give legal advice, and if I get a legal "thingy" wrong you can't sue me for malpractice. That is because I am not a lawyer, just a stupid waitress, who says things like "thingy." Heh.

In brief, these are Castle's Affirmative Defenses:

* Kucik has been convicted of federal felony offenses to commit securities fraud, mail fraud, and wire fraud. Castle alleges that Kucik pegged him as a "mark" because Castle is a man of means.

So, Kucik is a convicted con man. If I broke Ted Bundy's finger and he sued me, the fact remains that I broke his finger. The fact that a serial killer accuses me of breaking his finger does not make him a liar.

This is an interesting point of law. As we saw in the comments on the other blog post, the supposed lawyer for Castle made a huge deal about Kucik's tarnished past. If Kucik gets the jury trial he is asking for, the judge has the right to decide if details of Kucik's past are prejudicial enough that they may not be used as evidence. In other words, the jury might not be allowed to know, although they would have to find jurors unfamiliar with the case.

Again, whether I break Ghandi's finger or Ted Bundy's finger, I still broke somebody's finger. If the jury knows all about Ghandi's past and Ted Bundy's past, they might find me guilty of breaking Ghandi's finger but not Ted Bundy's.

To make it more interesting, here is a little dirt on Castle via Forbes.com: 

"The incident hasn’t shocked many who know Castle, a personal friend and frequent Palm Beach host of U.S. Sen. Orrin Hatch. Leverage buyout king Castle is known on The Island as an abrasive character who often snaps at the help, which in his case includes half a dozen servants, chauffeurs and yacht captain." 


So, Kucik is a current or former con man, and Castle is an alleged a$$hole. What a combination. Next?

* Castle claims that Kucik has not stated a cause of action for which relief may be granted. This is a common affirmative defense. Translated, it means that even if everything Kucik says is true, the law can't make Castle do anything. This is what Castle is claiming.

* Castle claims Kucik "did not state sufficient facts..." (Police report is below.)

* "As a Fourth Affirmative Defense, JOHN CASTLE responds that Plaintiff is estopped by his own actions and course of conduct from pursuing Plaintiff's complaint..."

If you just said, "WTF?" raise your hand. Yeah, me too. I needed help understanding this one.

The Legal Dictionary defines "estoppel" as:

"A legal principle that bars a party from denying or alleging a certain fact owing to that party's previous conduct, allegation, or denial."

Estoppel is used to prevent injustice caused by inconsistency. Essentially, it means that you can't claim one thing today, then change your mind and claim something different tomorrow. The police report is below and does not present any glaring inconsistencies. Perhaps Castle is trying to claim that Kucik seemed "just fine" after the incident.

* "...Plaintiff's own actions and course of conduct constitute a waiver of his complaint..." 
A waiver is the voluntary and deliberate relinquishment of a known right. Not sure what the logic is here; Castle is claiming that somehow Kucik waived his right to sue Castle. (The Amended Answer does not specify how Kucik supposedly waived his right to sue Castle. )

* Castle claims that either Kucik or somebody else, but not John Castle, is responsible for any harm Kucik suffered. Translation: Kucik broke his own finger.

* Castle claims "unclean hands." I believe this is not a reference to Kucik's criminal past, but rather, has to do with Castle blaming Kucik. See above. Castle is blaming Kucik for everything.

* Castle claims that Kucik has received collateral payments following the alleged injury. I expect (but don't know for a fact) that when Castle claims this, he is referring to Worker's Compensation payments. If I am correct, then Castle thinks Kucik receiving Worker's Compensation payments for an injury suffered at work should reduce anything Castle may owe Kucik.

Worker's Compensation is no-fault insurance, but when a third party causes the injury sustained at work the picture changes. Castle is a third party. The third party is sued outside of Worker's Compensation laws.

* Castle claims that Kucik didn't mitigate his damages. In other words, Kucik went to the emergency room for an x-ray the day after Castle broke Kucik's finger. Had he gone right away, Kucik would have mitigated his damages. Mitigating your damages means making an effort to keep damages to a minimum.

Castle is claiming that Kucik made it worse on himself by putting off his visit to the ER until the next day when Kucik's pain did not subside.

However, Kucik was working as a waiter. If he had insisted on leaving during the shift, he would have lost his job. His job had no benefits, no health care, no sick days. Moneybags and his lawyers can not seem to wrap their heads around what the real world survives every day. They are too far removed from the financial reality that the rest of us must deal with.

Castle is counter-suing Kucik for defamation of character. If Kucik is lying, then Castle should win. Also, lawyers have to do what lawyers have to do. Everybody should have fair representation  in legal matters. It is the lawyer's job to represent the best interests of the client, regardless of whether the client is popular or likable.

On another note, one of the forums in which these allegations are being discussed began with the OP calling Castle a "Kike." Racial slurs are never appropriate, and serve as nothing more than a poor reflection on the person making the racial slur.

Following is the wording of the police report from Eater:


"On January 8, 2011 at 10:11 p.m., I responded to the Palm Beach Police Department in reference to a complaint in the lobby. I met with the complainant, Paul Kucik, w/m, dob: 11-24-1954 of 2413 NW 7th Street, Boynton Beach FL.
Kucik stated that he was a waiter at Club Colette located at 215 Peruvian Avenue and on the night of January 7, 2012 at approximately 9:00 p.m., he was physically assaulted by a club member known to him as John Castle, who is approximately in his mid 70`s age. Kucik stated that Mrs. Castle requested that Kucik bring her their dinner bill. Kucik stated that when he returned to the Castles` dinner table, Mrs. Castle instructed him to give the bill to her husband, John Castle who was seated across the dinner table from her.


Kucik stated that he attempted to hand Mr. Castle the bill and Mr. Castle became irate with him and yelled, "You schmuck, why did you bring the bill to the table?" Kucik stated that he replied, "because your lady asked for it." Kucik stated while he stood on the left side of Mr. Castle, he (Kucik) attempted to hand Mr. Castle an ink pen. Mr. Castle began ranting and grabbed Kucik`s left hand and began squeezing and twisting his fingers. Kucik stated that Mr. Castle had a very tight grip of his left hand and Kucik had to pull his left hand out of Mr. Castle`s grasp. Kucik stated he was not certain which hand Mr. Castle grabbed his left hand with, but he believed Mr. Castle used his right hand.


Kucik stated that he immediately notified his employer of the incident, but no action was taken. Kucik stated he began experiencing pains in his fingers as a result of Mr. Castle`s actions. Kucik stated that on January 8, 2012 at 9:00 a.m., he went to the M.D. Walk-In Clinic located on Lantana Road. Kucik stated an X-Ray of his fingers indicated that his left ring finger was broken.


I did observe that Kucik`s left ring finger and pinkie finger were wrapped in blue medical tape.


Kucik was uncertain if he wanted to file an Affidavit of Prosecution against Mr. Castle at this time and stated that he would contact the police department within a few days after consulting with an attorney.


At this time, no further action has been taken. End of report"

John Castle Broke Paul Kucik's Left Ring Finger

This one bears watching. According to RT Question More online magazine, a Florida waiter was assaulted and battered by an unruly customer.

John Castle is a wealthy and the completely full of himself CEO of Castle Harlan equity firm. At 76 years of age, he is still acting like a spoiled toddler.

At the swanky, Florida country club in which Castle was feeding his face, his waiter, 57 year old Paul Kucik, dropped the check on the table after Castle's wife requested it.

Had Castle's wife not requested the check, this would have been a faux pas. It is the country club's policy to only drop the check if it is requested, and often the cost of the meal is added to the member's tab.

As I highly doubt Castle's wife will admit to requesting the check as Kucik claims (I believe Kucik,) let's pretend Kucik made a faux pas. If Kucik was a new hire, he might not have known the policy. A polite explanation of the policy would have been appropriate. If he was not knew and forgot, at the very worst a minor reprimand may have been appropriate and serve as a reminder.

After Kucik dropped the check at Mrs. Castle's request, Mr. Castle became visibly enraged and first subjected Kucik to verbal abuse by calling him a "schmuck." He then committed assault and battery by grabbing Kucik's hand and squeezing and twisting Kucik's fingers. There is no mention of whether Kucik screamed in pain or not; however, Kucik struggled and got away.

Guess what management of swanky "we love your money" club's initial response to Kucik's ordeal was? C'mon, guess. That's right: they shrugged off Kucik, whose pain was ongoing.

Kucik got himself to the emergency room for an x-ray. Castle broke Kucik's finger.

Here is a copy of the complaint that Kucik filed against Castle: Kucik v. Castle. In it, Kucik demands a trial by jury.

So, money truly isn't everything. It most certainly can not buy an ungracious troll any class, as we have seen today.

Also, I told you waiting tables was dangerous.

When Rule Enforcement Does Not Make Sense

As I explained recently, some restaurants allow staff meals to be eaten on the premises. Employees may not take food home unless they pay for it. Eating the staff meal on the premises is allowed, taking the food home is considered stealing.

At first blush, this seems like a relatively reasonable attempt to control costs by ensuring that employees only take what they need to eat. For the corporate monkeys at Little Chef restaurants in the United Kingdom, it is an attempt to shoot themselves in the foot.

At 52 years of age, Lynn Smith had worked for twelve years as a waitress at a Little Chef restaurant in Staffordshire. According to the UK newsletter Mail Online, her record was unblemished. 

Ms. Smith took her lunch break as per her employer's policy. She asked if she could have a piece of apple pie with her lunch, and was told, "Yes." Ms. Smith was a responsible and dedicated member of the team at Little Chef, and the restaurant was busy; they may have been understaffed. She decided to cut her own lunch break short because she was needed on the floor. She boxed up the portion of her lunch that she did not have time to finish: half of the slice of apple pie. At the end of the shift, she took it home.

A few days later she gets called into the manager's office, and asked what was in the box she took home a few days ago. In her mind, she had done nothing wrong, and so she told the manager what was in the box. Long story short, she was fired for stealing. It is against company policy for employees to bring staff food home.

She should have been thanked for choosing to cut her personal time short because the restaurant was busy and short-handed. Maybe if they had more staff, Ms, Smith would not have "stolen" the uneaten portion of her lunch.

She should be commended for twelve years of good service. Instead, she is fired for technically breaking a rule. She was treated like a thief, but she was never a thief. I truly wonder at the logic here. It is costly and time consuming to look for people to hire, train them... and then replace them if they don't work out. They had this one waitress for twelve years, but they threw her away.

This smacks of corporate lunacy. Surprisingly, Little Chef is not a Darden concept.

It is also a reminder of the injustices and hunger that waitresses are subjected to. I doubt it would occur to office support staff to not finish their lunch. When people work through lunch, it is recognized and sometimes rewarded. They may earn overtime.

Unionized laborers do not have to bear the insult and injury of not finishing lunch, then being fired for bringing the remainder home. I'd love to see a waitress union. Even in states in which all workers, including restaurant staff, must be given paid breaks, waitresses know that fussing about no breaks means no more shifts.

Ms. Smith was fired for a technicality that, at worst, should have resulted in a reminder. Little Chef restaurants are attempting to recover; the bad feelings they just earned in the community will only make that goal harder to achieve.

Canada and Sexual Harassment Laws

Three cheers for Diana Evangeline!

The former Winnipeg waitress will be one member of a panel at a national human rights conference hosted by the Manitoba Human Rights Commission, according to CBC News Manitoba.  Evangeline was instrumental in a landmark human rights ruling in 1989.

She was 21 years old when she worked as a waitress at Pharo's Restaurant; she and another waitress were subjected to sexual harassment and verbal abuse by a male cook. The harassment included unwanted and inappropriate touching of body parts and sexual advances. The manager did nothing to help them. Evangeline quit after a couple of months, but the other waitress was fired in retaliation.

Fortunately, Evangeline didn't just walk away. She fought back. She filed a complaint with the Manitoba Human Rights Commission in 1983. Platy Enterprises, Ltd., owned the restaurant and was the target of her complaint.

The initial rulings were in the two waitress' favor, but the Court of Appeals overturned the victory. The Court of Appeals argued that the larger employer could not be held responsible for the behavior of employees.

That took my breath away. When employers are not held responsible for the behavior of their employees, you have a free-for-all on your hands and the bullies win. It is not right to subject people to the harassment of other employees. An employer had better set the precedent for how we behave at work, take responsibility, and enforce consequences. This ruling becomes even more surprising when you take into account that the manager of Pharo's was also the president of Platy Industries, Ltd. He can't even claim to have been in an office miles away and unaware of the shenanigans. And yet, he still bears no responsibility?

Additionally, I think a safe and happy workforce equals a more stable and productive workforce. This translates into a successful business, but then, what do I know? I'm just a stupid waitress. ;-)

In 1989, almost ten years after Evangeline's ordeal began, the Supreme Court showed the good sense to overturn the Court of Appeals' ruling. The top court's ruling states, in part:

"By requiring an employee, male or female, to contend with unwelcome sexual actions or explicit sexual demands, sexual harassment in the workplace attacks the dignity and self-respect of the victim both as an employee and as a human being..."

As a result, as of as recently as 1989 sexual harassment is considered a form discrimination in Canada. The Supreme Court ruling is available online. At the time, Evangeline was known as Diana Janzen.

Change is hard. Evangeline was blamed for her woes by those closest to her. She was told her problems were her fault because she had to move away from home and be independent. That truly surprised me. Down here in the states, people still blame rape victims for wearing the wrong clothes or being under the influence of recreational substances, but down here we don't seem to be prone to expecting our daughters to live at home unless and until they get married.

Evangeline was also scolded for speaking out against "normal" behavior. Not sure if her friends and family thought abusive treatment of women was simply normal everywhere, or whether they were referring to male behavior in the restaurant industry. Either way, it is wholly disgusting and unfair to label any form of abuse as "normal." It is also sad that women would see the world this way. No wonder they were upset with her for leaving home. If I considered abuse at the hands of male co-workers "normal," I imagine I would prevent my daughter from going out in the world and gaining life experiences that, ideally, should help her grow in wisdom.

When we consider behavior such as groping a co-worker "normal," we simply enable predators.


Evangeline says that there is still much work to be done, and that the conversation she started twenty three years ago has just begun. I don't doubt it. 

Employee Food Rules

Ask the Waitress!

Got a question about the "ins and outs" of employee meals and food discounts. I'll walk you through the common but varied rules regarding workers and food.

* Some places that manufacture food allow workers to eat what they want while they are working. See's Candies is a good example of this. While clocked in and working, employees may taste or snack on whatever they would like. The logic behind this is that, in the long run, workers will not want to eat constantly or over-eat. Workers who are around food that they are not allowed to taste or eat are more likely to be distracted and resentful.

Leaving the factory or shop with product is stealing. Employees who wish to bring something home may be offered a discount instead of paying full price.

* Restaurants often offer employees a discount. For example, an employee who comes in for lunch on his day off may receive a twenty percent or fifty percent discount. The details of this policy are up to the restaurant owners.

* Some restaurants will give the same discount to the employee's companions; some restaurants do not. So, in one restaurant the worker may bring his wife and child in for lunch; he gets the discount but they pay full price for the wife and child's meals. In another restaurant, the entire bill is discounted.

I worked in a place that had a strict policy about discounts only being given to the employees. Another waitress wanted to bring home a piece of cake for her son at the end of the shift. When the manager discovered that the cake was not for her own consumption, the manager charged her full price. The waitress was offended.

Personally, I think it was petty to deny her what was only a twenty percent discount. Armed with the knowledge of how much food in the pastry case doesn't sell, I would have given it to her for free since the shift was over and the restaurant was closing for the night.

* Sometimes there are rules about where restaurant food is eaten, similar to the See's Candies example. A worker on a double-shift may be offered a free meal, but it must be eaten on the premises (between shifts.) Other places might not care where you eat your free meal.

Restaurants that have rules about eating on the premises or paying are preventing employees from sharing the food with non-employees, such as in the cake example above.

* Shift meals are meals eaten in return for working a shift, not on your day off. While working, some employees will enjoy a discount on shift meals, others may receive one free meal per shift, others must pay full price for everything, but that is less common. Some places offer employees a limited menu. That way they can charge little to no money per shift meal, and not risk the employee paying a few bucks for a lobster.

* I worked in one restaurant that offered a free staff dinner before the dinner shift. In addition to whatever fare was offered, the chef would include a platter of whatever was on special. It was just enough on the specials platter for everybody to get a taste. Everybody, front and back of house, ate together. This was the best time to ask questions and learn about the specials.

As you can guess, this was no chain. It was a small dinner restaurant run by the owners.

We started the evening well-fed and knowledgable of the specials. This was intelligent, humane, and I doubt it was especially expensive. Pasta and salad for the staff shouldn't break the bank. More restaurants should work in this fashion.

If you are working in a restaurant and you wish to taste or try something, ask! Worse case scenario you may be told "no," but more likely you will be told "yes." Food that didn't get served may be up for grabs, if you want something, ask! Don't ever steal; please respect the rules of the employer. However, some restaurant owners are stingy and some are more willing to allow employees to eat something. For me, one of the joys of working in a good restaurant is getting to taste various and sundry dishes.

Hope that helps. Thanks for asking the waitress! 

Tips and the Real World

There is a push in Canada to allow food servers to keep their tips instead of allowing owners and managers to mandate who gets to put their hand in the till on the backs of waitresses. I was dismayed to read Corey Mintz's opinion piece to Dalton McGuinty published in the The Star. Mintz believes that server tips are fair game for everybody in the restaurant industry, and accuses  McGuinty of being ignorant and naive of how the restaurant industry works. I could not disagree more.

Mintz's first argument is that wait staff claim a small percentage of their actual income, therefore, they are getting to keep more money than the government sees. In order for this to be relevant, the following needs to be true:

* every single solitary food server in Canada must be only claiming fifteen percent of their actual income, as Mintz claims; and

* every government official, tax employee, and every person involved with crafting new policies for the restaurant industry must be completely in the dark about the possibility that workers in a cash business might claim less than they make.

Mintz seems to be of the opinion that both of these requirements are true.

He also points out that in Canada, tips are not wages and, therefore, the government does not (currently) have a say in how the tips get divvied out. I believe that Canada is doing a good thing by stepping in and protecting low-paid waitresses and waiters from having their tips commandeered by owners and managers.

Tips are payment for service. Therefore, people who do not provide service should not be included in any tip pooling or tip outs. That means that only front of house, not kitchen and back of house staff should be getting tip income.

Mintz argues in favor of managers and owners taking a share of the tips. Managers often provide service by helping the waitresses. For example, a manager may spend time on the floor clearing a table for a busy waitress, or making and running drinks, or even delivering food. Mintz feels that a portion of server tips is due to the manager for his help.

I understand the logic of this, but Mintz is leaving out an important element of the equation. To the best of my knowledge, managers are usually paid better than waitresses to begin with. They make more money per hour not including tips, and generally have access to benefits that waitresses can only dream about. Because Canada is ahead of the United States in providing health care to her citizens, waitresses do not need to avoid seeing a doctor that way we often do here. However, good luck getting paid for sick days. Paid vacation? In your dreams.

The idea of owners sticking their hand in the tip till is nauseating to me. If you think managers are better paid than waitresses, check out what the owner drives. Owners demanding tip money or the waitress loses her job smacks of the mob boss demanding an "insurance" payment so your business doesn't get robbed and vandalized.

Mintz points out that if managers can't take tip money from waitresses anymore, the restaurant industry in Canada will lose "good" managers. Change is hard, and change for the better might mean growing pains such as hiring and training new managers. I wonder if, when prostitution and pimping first became illegal, did some pimps decide to quit pimping?

As an experienced waitress in the fifty states, I can guarantee Mintz that protecting the least powerful employees and allowing them to keep the tips they have earned (or share reasonable percentages with other, non-management front of house staff) will not bring the Canadian restaurant industry to it's knees.

Mark Bittman, ROC United, and Darden Restaurants

I first became a fan of Mark Bittman when I discovered The Minimalist Cooks Dinner. It is an excellent cook book by Mark Bittman featuring lots of healthy, delicious recipes that are relatively easy and quick to cook. It is a boon to those of us who wish to provide our families with good dinners together, but have to work and can not be home all afternoon cooking from scratch. It is a great cook book.

Little did I know at the time that Mark Bittman, unlike other chefs and food enthusiasts, cares about the people who work "low level" jobs in the restaurant industry. He begins his editorial in the New York Times, The 20 Million, like this:

Help wanted: Salary: $19,000 (some may be withheld or stolen). No health insurance, paid sick days or paid vacation.  Opportunity for advancement: nearly nil.


I was shocked when I first started working in the restaurant industry at how little respect is given to waitresses and other employees. I remember once seeing a chef cutting beef aspic; I got excited because I hadn't seen aspic for years.

I said, "Oh! Is that aspic?"

In response, he sneered, "How do you know what aspic is?"

Right. Silly me. He is a big-time foodie chef. I'm just a stupid waitress. Too bad I forgot my knee pads; guess I'll just get bruises tonight.

Lack of respect for human beings working in restaurants allows for all the other injustices that Mark Bittman writes about in his opinion piece. There is an adage that waitresses can not afford to eat where they work: it is true. Bittman clarifies that it is worse than that. Restaurant employees can not afford to feed their families if they miss a day of work.

There are no sick days for the just a stupid waitress/dishwasher/busser/insert job beneath you here.

They work sick or tell the kids no milk this week. That is one reason why the anonymous comment on Darden, Dignity and Racism got a little under my skin. The self-reported manager insists that Darden has a strict policy about not letting employees work while sick. So, the customer is being taken care of, but the employees are not. They still don't have health care or sick days. And they still don't make enough money to get the bills paid if they get sent home with the sniffles.

In my personal opinion, the whole tipping thing is out of hand. Wait staff make less than minimum wage in most states. People spending hundreds of dollars on themselves get to decide at the end of the meal whether the waitress did a good enough job to warrant twenty percent. And if they are tourists, it is unlikely she will be tipped well. (Tourists know that they won't see you again for a long time.)

After she gets a twelve percent tip, she must tip out others as if she made eighteen or twenty percent. Because everybody knows that waitresses are rolling in tons and tons of cash, right? No wonder she can't save any money, she never gets to keep it.

While I would like to see the days of tipping become history, Bittman's article discusses numerous problems in the restaurant industry, and he knows what he is talking about. Give it a read. :-)

Busser Tip-Outs

Ask the Waitress!

"Is it legal to tip a busser less than the required percentage?" 

The short answer:
State and federal laws do not require those employed as waitresses to pay other employees anything. Employers are responsible for compensating employees.

Employers, however, may make rules that waitresses must tip out bussers. While it is not illegal to break this rule and doing so will not result in jail time, employers are within their rights to fire employees who break the rules.

So, it is not illegal, but you could be fired for it.

The long answer: 
The government has laws that all businesses must follow. The Department of Labor sets the minimum wage for tipped employees at $2.13 per hour, a less than generous payment. The Department of Labor also requires that restaurant owners ensure that tipped employees go home with at least minimum wage in their pockets. The money brought home is a combination of tipped employee minimum wage and tips.

A "tip credit" is the amount of money the waitress must make in tips in order to make full minimum wage. Let's use easy numbers as an example:

If tipped employee wage is $4, and
Full minimum wage is $6, then
The tip credit is $2. The waitress must bring home at least $2 for every hour worked.

Tip Outs

Waitresses are often required to pay bussers (and sometimes other front of house staff members) a "tip out." This is a portion of her tips that is considered busser income. In theory, she usually pays the busser about ten percent of her tips. In reality, some waitresses lie (and some don't.) If she made $200 and owes the busser $20, she may only claim $150 and pay the busser $15. Officially, she made $135. In reality, she leaves with $185 in her pocket.

That is why many managers require that the waitress pay the busser a percentage of her sales. If they make the assumption, as they often do, that the waitress is earning twenty percent, then she is required to pay the busser $20 for every $1,000 in sales.

Technically, she must still bring home full minimum wage after tip outs. If not, the owner owes her money.

Bussers


Some restaurants pay bussers full minimum wage. Bussers are not considered tipped employees; however, they receive additional compensation via tip outs. Some restaurants consider bussers to be tipped employees, and pay them less than full minimum wage.

Per the Department of Labor, to be considered a tipped employee you must make at least $30 in tips per month. That is not a lot of money if you are working full-time. Therefore, an employer may choose to consider a busser a tipped employee and pay the busser less than full minimum wage. The tip outs from the waitresses must bring the busser up to full minimum wage. If not, the owner owes the busser money.

It is the owner's responsibility to make sure everybody makes at least full minimum wage. It is not the waitress' responsibility to make sure everybody is compensated fairly.

In the end, there is no federal nor state law requiring waitresses to pay bussers a certain percentage of their tips. Therefore, failing to do so is not illegal.

Restaurants, however, may make rules requiring waitresses to tip out bussers a specific percentage of their sales. Failure to do so is considered insubordination. Breaking this rule may result in the waitress being fired. 

Tuberculosis at Hooters

Bombshell dropped in my email this morning.

We all know how much I despise Hooters and the like, but I believe this could have happened at any restaurant that shows disdain for its "lower level" employees and the public at large. In this case, however, it happened at Hooters in Inn Harbor, the Baltimore Sun reports.

Nineteen year old Jheri Stratton caught tuberculosis ("TB") from her manager at the Hooters restaurant in which she worked as a waitress ("Hooters Girl.") There are so many angles to discuss in this story that my fingers are frozen; I don't know where to begin. A good start is to say that I am truly sorry for Ms. Stratton's pain and suffering.

The Baltimore Sun reports the young woman's name, medical, and legal situation details. The manager who infected her and numerous other waitresses is allowed to remain anonymous. Why is his anonymity important but Ms. Stratton's is not?

Ms. Stratton was monitored by the health department to ensure she took her medication as directed, as if she were a child. Remember this: the health department does this with TB cases because of how debilitating and contagious the disease is. 


We are not told if the health department watched the manager take his medication, or if he was reprimanded at work, fired, or anything else. His anonymity is protected. I dare say this is because he is a grown man, and Ms. Stratton is looked down upon by the Hooters industry as an expendable, replaceable set of boobs, as opposed to a human being.

Originally, Hooters instructed Ms. Stratton that her disease was "not serious" and forbade her to inform her family and friends how she contracted it. They didn't say "don't tell them you are sick." They said, "don't blame us."

That, in itself, is heinous. All they cared about was not alerting the public to TB germs present in a restaurant. Because they might lose some business from, for example, people with already compromised respiratory systems.

Manager Was Working Sick

It is industry standard that waitresses do not have job benefits. That means no health care and no sick days. That means Ms. Stratton had no benefits to fall back on when she contracted TB from a manager at work.

According to the Hooters website, managers do have benefits:


"All full time management employees in restaurants served by R.M.D. Corp have an opportunity to participate in a broad range of group benefit programs. Hooters' total compensation program includes pay and benefits that respond to individual employee needs.


Our competitive insurance program includes the following benefits:
• Major Medical
• Life Insurance, including Accidental Death and Dismemberment
• Short-term and Long-term Disability
• Dental
• Vision Exam Reimbursement


In addition to the insurance program, Hooters offers the following benefits to full time managers:
• Paid Vacation
• Retirement Savings Program
• Meal Program
• Industry Certifications
• Quarterly Bonus Incentives
• Cash and Prize Incentives for Territory-wide Promotions
• Casual Dress Attire
• Fun and Exciting Work Environment"


Why this manager would work while sick with TB is beyond me. If he came down with symptoms, he had medical insurance and could go see a doctor. He would be diagnosed, treated, and be able to take time off from work. Instead, he works and gets other people sick.

Many waitresses that this unnamed manager infected were diagnosed with latent tuberculosis. This means that the disease is in their bodies, but they do not have any symptoms. According to the Virginia Department of Health, latent tuberculosis is not contagious. Therefore, the manager was actively sick when he infected other people at work. In order to infect other people, he had to be suffering with symptoms and know he was sick. And yet, he chose to work around other people's food.

Is TB Serious?

The city of Baltimore, Maryland is taking the position that because, according to the Baltimore Department of Health, the public was not at risk for contracting the disease, there is no reason to shut down the restaurant, even temporarily.

WTF? I want to know who paid them.

When people infected with TB cough, laugh, sing, etc., they release TB bacteria into the air. When other people breathe in the bacteria, they contract TB.

"Prolonged exposure" is required to catch tuberculosis, but nobody defines "prolonged exposure" per the Baltimore Sun. If a sick waitress sits with you for a half hour at your table, is that prolonged enough? Or would she have to sit for an entire hour for you to be at risk? If you eat lunch every day at the same Hooters, does that count as "prolonged exposure?"

It is accurate that an infected person is most likely to infect people they live and work with. Hence, "prolonged exposure." It is not impossible to infect someone else in a short period of time. I had to be tested for TB, many years ago, after being exposed to somebody for an hour. I didn't have TB, but they tested me to make sure.

Exposure to TB in a poorly ventilated area is more likely to result in getting the disease. So, if you are sitting in the back of the restaurant you are more likely to get sick than if you are sitting near the door or open windows.

You'd think they would at least have shut the restaurant for a day or two to air it out. You'd be wrong.

Maybe because Ms. Stratton's case of TB was bad enough to cause permanent damage to her liver,  or maybe because she hired a worker's compensation lawyer to help her, the fact that she contracted TB at Hooters came out and eventually Hooters cooperated with the Health Department. The Baltimore Sun gives them credit for "cooperating fully."

I hate it when companies try to cover up problems, and then when they get caught the news only reports on how they cooperated. They cooperated after getting caught red-handed. It's like claiming that you never steal cookies, and when somebody takes your picture with your hand in the cookie jar, you choose to "cooperate."

Ms. Stratton was lied to: she was told by some self-appointed medical genius at Hooters that TB wasn't "serious." Then she was told she couldn't tell people where she got sick. Hooters put the people Ms. Stratton lives with in danger by playing down the dangerous nature of her communicable disease.

Worker's Compensation

Ms. Stratton was fired two days after she filed her worker's compensation claim. It seems that when your body is suffering from active TB, it is hard to keep up with the pace in a busy restaurant. According to Ms. Stratton per the Baltimore Sun,

"managers expressed frustration with her inability to work at a normal pace and co-workers said they noticed she had lost significant weight and couldn't eat."  


Well, she did have TB, after all.

In general, waitresses are expendable. It is worse in breastaurants such as Hooters in which men get to play up their privileged status and treat women as second class citizens. It is easier to throw away something that is less than equal.

In the end, Ms. Stratton was awarded worker's compensation benefits for lost wages and medical expenses with the help of her  lawyer. Her medical benefits include lifetime care for problems caused by getting TB at work from a manager who was actively sick with TB. Unfortunately, I expect she will need that lifetime medical care. And she is only nineteen years old. Great going, Hooters.

I wish Ms. Stratton well.

Venus Transit 2012

This is totally off-topic, but sometimes, my friends, it is good to look up from the drudgery of everyday life and peek into the stars. We are living on a rock flying around in space, tied by a mysterious gravitational force to a ball of flaming gas, without whose light and warmth we would all soon perish.

Our very existence is unbelievable.

Last night, a rare occurrence was seen in the sky by those lucky enough to enjoy cloud-free weather. I stood on the roof of a local building equipped with two telescopes, but alas, clouds and rain laughed at me as they destroyed my last chance to directly witness Venus, which is closer to the sun than Earth, pass between the sun and our home planet. So, instead, I watched part of a live feed from Hawaii on a big screen.

Venus will not pass between Earth and sun again until 2117. I marvel at the fact that scientists can actually know this.

Take off the Dansko shoes, rub your feet, and look up. Take a deep breath and marvel at the majesty of the universes surrounding you as you fly through space. Enjoy this video from NASA that is in the public domain. Turn your speakers on; nature includes sound waves and sound waves make music. Enjoy; we are all insignificant specs of carbon matter. If we only knew what was out there...

http://youtu.be/4Z9rM8ChTjY

Ode to Springs1 Ranch Dressing on SNL

I'm a huge fan of Saturday Night Live ("SNL") even though I seldom get to watch it, these days.

This gem is from October, 2011. Melissa McCarthy was the guest host, and she did a bang-up job portraying Springs1 in this sketch, aka "Linda."

While we do not see the infamous Springs1 in a restaurant, we do get to marvel at her love of ranch dressing. Based upon Springs1's blog posts and comments, I think she may have responded in a similar fashion had she been in the environment portrayed in the following video. Perhaps SNL would care to draft a sketch in restaurant...?




Heh. That's all for today!

Men With Long Hair

Ask the Waitress!

This came in as a comment under Hooters Lawsuit Settlement, California.


"my boyfriend works at the hooters casino in vegas, as a dealer. he has long hair, and its shaved underneath because his hir is to thick and he gets hot. his hair has been like this sence he was in middle school. hes 27 now. hes beeen working at hooters for just about a year now, some company just bought them, and there threating his job if he doesnt cut his hair, telling him he cant were it in a pony tail. but the dress code say that boys have to have ther hair no longer than there shirt coller, ans it is longer than that but only by 2 inches, thats where he likes it. so he puts it up in a pony tail, and it it meets the length requirement. looks professional, hes been doint it for almost a year now. but all of the sudden they have a problem with it. what can he do?"

Oy. The short answer is: Not a whole heck of a lot. 

At-will employees have very few rights, which is why so many employers prefer this arrangement. If you have an employment contract or are part of a union, you can always go over the contract or check with the union lawyer. 

At-will employees are protected by federal guidelines from discrimination on the basis of gender, religious affiliation, race, national origin, and disability. Some states add to this list; for example, in Vermont sexual orientation is a protected status. 

At-will employers may hire and fire people for any reason and no reason, as long as it is not a protected reason. You may not be fired in any state for being Hispanic; you may not be fired in Vermont for being gay; you may be fired in any state for refusing to wear an ugly uniform. 

Hair length is considered part of a company's dress code, and a private employer may require short hair or clean-shaven faces for men. Lack of compliance with a company's dress code may result in termination of employment.

Okay, let's look at the various and sundry things people might try to fight the short hair for men code: 

1) Religion. I guess you could try claiming hair length was part of your religion, but you would bear the burden of proof. That means it would be your responsibility to convince the court that there really is a religion that requires hair length and that you are a bona-fide, practicing member. 

2) Gender. If women can wear their hair long, why not men? Because this society has already set the precedent that dress codes for men and women differ. Also, if you walk into a court room claiming appearance discrimination as a male Hooters employee you will become the laughing stock of the court -- I'm serious. If you are a dude who wants to make a point with Hooters, apply to be a waiter. Then, sue.

Appearance discrimination is not technically a legal cause of action, but it is something that has been looked at because more attractive people seem to get jobs more easily. 

For a more detailed discussion of this issue, read on Avvo.com: "It is discrimination that males with hair below the top of their collar are fired but women are not?"

One lawyer actually wrote in response to this question, "You can keep your sweet pony tail or your job, but not both." This was taken down by administrators because the entire answer was offensive and insulting; I admit I laughed at the lawyer for putting it this way. You'd think professionals answering questions on a public forum might behave in such a way as to generate business, not drive it away. And, you'd be wrong. 

Respectfully, your boyfriend can try reasoning with the employer, but the employer is within the law to fire him over non-compliance with the dress code. Perhaps he can remind them of his great work over the past year and what a reliable, well-liked employee he is? Best of luck to you both. 

The people who answer questions on Avvo.com are (supposed to be) real lawyers with real licenses to practice law. I, on the other hand, am not a lawyer, nor do I play one on TV.  I do not give legal advice. I'm just a stupid waitress. ;-D

Misperceptions About Waitresses

I found this lovely writer's blog, "RD Meyer Writes." I found inspiration in RD's post, "Misperceptions About Writers" because of both the similarities and the differences between writers and waitresses.

Misperception No. 1
Writers: Writers are pretentious snobs who look down on everyone while wearing tweed.

Waitresses: Just the opposite. Waitresses are either stupid and unskilled or students, because anybody can wait tables.

It is a myth that waiting tables is easy and requires no skill. Waitresses tend to do just about everything in the restaurant: prep bar fruit, squeeze orange juice, bus and sometimes wash dishes, polish silverware, polish glassware, vacuum, mop, clean the bathrooms... oh, yeah, and act like we are not tired, cater to tables' social and gastronomic needs, serve efficiently, and get your separate checks right. Did I mention multitask? All of this is done at warp speed. I challenge anybody who thinks waitressing must be easy to try it for one week. Just one.

Misperception No. 2 & 3
Writers: Once you get published, your working days are over.
Once you get published, you have financial security.

Waitresses: Waitresses are rolling in dough from all those tips.

On a busy Saturday night, you can see the green envy in some cook's eyes as he compares his hourly wage with waitress tips. Reality is that not every shift is busy; restaurants have busy times and slow times. $300 on Saturday night, $50 on Tuesday night. But the jealous cook isn't there are Tuesday because the kitchen needs less staff.

Waitresses are seen as banks for the restaurant. Many owners underpay other front of house staff and require waitresses to give a portion of her tips to bussers and hostesses. This tip out is figured on sales, not on actual tips, so if a table doesn't tip well the waitress still has to tip out based upon what they ordered, not how much she made.

Reality is that most waitresses struggle and fight for the good shifts.

Misperception No. 4
Writers: As a writers, you will have legions of adoring fans.

Waitresses: Professional waitresses have loyal customers who pay them well.

We have all read the feel-good stories about the long-time waitress who retired and was just loved by everyone. Or, how about the folks who gave their favorite waiter a five thousand dollar tip to replace his car? Happens, but almost never.

Sure, every restaurant has it's regulars. And some like you, some don't. When they like you, they tend to tip more. Tourists don't always tip well because they know they won't see you again.

Misperception No. 5
Writers: Once you're published, you're in like Flynn.

Waitresses: All starving artists and actors work as wait staff.

On RD's blog, there is a picture of a guy holding a sign that says, "Will emote for food." Heh. I think it was a New Yorker cartoon that showed a sign in the lobby of a restaurant, "Please wait to be seated by a surly, unemployed actor." Heh.

Thanks, RD, that was fun.