UnderCover Waitress: It's Not Illegal...

Wednesday, September 5, 2012

It's Not Illegal...

...to be an a$$hole.

Sorry, but it's true. Was holding off posting this because I don't want to discourage Darden servers who may have been discriminated against from standing up for themselves. But this is relevant to more than one recent "Ask the Waitress" question. Some of the situations described herein are different from those in the current Darden fiasco.

I responded to one "Ask the Waitress!" question recently with a post titled, Stealing Tables. The waitress wanted to know what to do about other servers taking her tables. Perhaps I should have mentioned the possibility of the asker discussing the issue in private with the waitress who was stealing her tables.

I remember once catching a co-worker in a private area and pointing out quietly that he should not disparage me in front of customers. He turned on his heel as he called out over his shoulder, "Oh, Under, I'm not afraid of you!" as he ran out. He ran out so fast I had to look behind me to see what he was afraid of. I never found it. The point is, sometimes a conversation works, but only if two people are willing to have it.

Without further information about the asker's relationship with the co-worker stealing tables or the policies of the restaurant,  I simply suggested discussing the issue with the manager.

Fellow blogger Norma Beishir added to the conversation with the logical next question:

"What do you do when the boss doesn't care?"

Get another job.

I know, it sounds harsh. And no, I am not one of those self-important types who think that getting a great job is easy. These days, getting any job isn't easy; I do understand this.

Generally, if something is not forbidden, then it is legal. That means we have to have a rule written on the books or in case law* before an employee has a legal complaint.

I have a great example demonstrating this need to find a rule from my own experience. My least favorite manager used to tell everyone in December that if we worked Christmas Eve, we could work New Year's Eve. (Not saying she was the only manager who promised this.) Most waitresses wanted to be home on Christmas Eve, but everybody wanted to work New Year's Eve because it promised to be quite lucrative.

That manager's last winter, I worked Christmas Eve. I was not put on the schedule for New Year's Eve. (It gets worse -- she put a waitress on the New Year's Eve schedule who was not a regular employee because they were friends.)

How many readers are thinking, "That's not fair!" It wasn't fair. It was inconsiderate, rude, and grossly unprofessional. BUT: Was it illegal?

Illegal HR Policy
Here's the catch: I am Jewish. Yes, it was illegal. The Equal Employment Opportunity Commission (EEOC) protects workers from being discriminated against on the basis of religion. Discrimination is the unjust, prejudicial, or different treatment of specific groups of people. The manager had one set of rules for Christians and a different set of rules for me, a Jew. I had a legitimate legal complaint, had I chosen to file it.

What if I were Christian and the same thing happened? Manager changed the rules because she wanted to do a favor for the seasonal waitress, and just didn't like me enough to care about my feelings? Still unfair. Still inconsiderate and downright rude. Still grossly unprofessional.

But illegal? No. I know of no laws protecting at-will employees against managers breaking verbal promises. The point of this example is to demonstrate that an actual law has to be broken for an employee to have an actionable complaint. Employers and managers are not required by law to be nice people.


Quick note on Darden: older workers may have a claim that they were subject to age discrimination. Federal law protects workers aged 40 and older from age discrimination. Some states lower or remove that cap; for example, in some state a 30 year old may claim age discrimination. Based on the many stories I have read, it seems plausible that Darden was attempting to get rid of older workers.

Having looked at the test that Darden servers were subjected to, I will also mention that some of the questions seemed to be directly targeting people with ADHD tendencies. This may be covered by the Americans With Disabilities Act (ADA.) I do not know for certain and it should be discussed with people who are experts in ADA law and discrimination.

Labor Law

Cornell University has a nice overview of Labor Law:

"The goal of labor laws is to equalize the bargaining power between employers and employees. The laws primarily deal with the relationship between employers and unions. Labor laws grant employees the right to unionize and allows employers and employees to engage in certain activities (e.g. strikes, picketing, seeking injunctions,lockouts) so as to have their demands fulfilled.

The area of labor law is governed by both federal law, state law and judicial decisions. It is also governed by regulations and decisions of administrative agencies..."

Did you catch that? The above excerpt is talking about unions. Non-unionized employees have no bargaining power; they are dime-a-dozen. If at-will employees don't like their working conditions, and they can't find a law that protects them, their best bet may simply be to look for other employment.

Employee Handbook

Employee handbooks are sometimes found to imply a contract. For example, let's say the handbook says you get three written reprimands, and then you are fired. But, you get fired with no written reprimands.

You complain because the handbook says you will be fired after three written reprimands. Your employer counters that you are an at-will employee; you can be fired at any time, with or without the reprimands. Was the handbook a contract?

It most likely depends upon the exact wording in the handbook. And the handbook probably includes paragraphs saying the "agreement" was not a contract, etc...

Changing the Law

As I explained in To Whom Should I Complain, if you want to change the rules that are written on the books, then you have to consider the beliefs and values of the people who represent you in the government. If you vote in conservative, pro-business Republicans to be your mayor, governor, senator and congressperson, then you will be hard-pressed to find a sympathetic ear when you complain to your representatives about low pay, no breaks and an employer who treats you poorly. As long as the employer is not breaking the law, there is not much you can do. If you want to change the law, start voting for representatives who sympathize with labor.

*Case Law

The Georgetown Law Library has a nice page on Case Law:

"Every law student and practicing attorney must be able to find, read, analyze, and interpret case law. Under the common law principles of stare decisis, a court must follow the decisions in previous cases on the same legal topic. Therefore, finding cases is essential to finding out what the law is on a particular issue." 

Everything is not so "black and white." When dealing with complicated situations, lawyers research case law and use past decisions as examples why their client should win. (Essentially: This guy with a similar situation won last time, so my guy should win this time.)

Back to the original questions from Stealing Tables: Co-worker is stealing tables. What to do?

* You could attempt to discuss the issue with the co-worker in private. If this solves the problem, awesome.
* You could discuss the issue with the manager. You and the manager might go over the policies in the restaurant, and the problem behavior on the floor. If this helps, awesome.

Manager does not care. What to do?

* You could beat up the co-worker out back. You may, however, get arrested for assault and battery. I don't recommend this. (<- sarcasm.)
* You could fight it out on the dining room floor, but customers will likely notice tension among the staff. This is unprofessional and you could get fired. (<- still sarcasm.)
* You could look for another job. With any luck, you will find a better job.

In closing, it never hurts to look for another job, and it can feel empowering. I have, on more than one occasion, been offered another job, thought about it, and decided I was still better off where I was. At the very least, I gained perspective by seeing what else was available.

1 comment :

  1. When you have to be friends with the unpleasant person to get preferential treatment... well, that may not be illegal, but it's still wrong...


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