UnderCover Waitress: July 2012

Tuesday, July 31, 2012

EEOC

There is some talk about whether the servers who were recently demoted to SAs en masse might have some sort of class action claim against Darden Restaurants. I am not a lawyer (just another stupid waitress ;-)) but I will try to evaluate this possibility. If anybody wishes to follow through, please contact a lawyer knowledgable of employment and labor law in your area. I am not qualified to give legal advice.

Most employees in the states these days are at-will employees. The first time an employer explained what that meant, I almost laughed in his face. Employers like to tell you that since you are an at-will employee, you are not required to give two weeks notice if you don't want to. Wow, what an awesome benefit.

At-will employees do not have contracts. They can be fired any time for any reason or no reason, as long as it is not a protected reason. Having at-will employees gives the employer freedom and robs the employee of security.

EEOC

Protected reasons are the things that you may not be fired for, such as skin color. Protected reasons are enforced by the Equal Employment Opportunity Commission. 

1963: The Equal Pay Act when into effect. Men and women may not be paid different amounts of money for performing the equal work in the same workplace. We are a long way away from true equality in salaries for men and women, but that is another blog post.

1964: Title VII of the Civil Rights Act was signed into law. Workers may not be discriminated against on the basis of race, color, national origin, gender, or religion.

At some point, Title VII was amended to protect pregnant women from discrimination.

1967: The Age Discrimination Act went into effect. Persons age 40 or older may not be discriminated against; for example, you may not be fired because you are older.

1990: Title I of the Americans with Disabilities Act protects disabled workers.

1991: Among other things, Title VII and the ADA were amended to permit jury trials and compensatory and punitive damage awards in intentional discrimination cases.

All of the above rules and laws include that the person may not be discriminated against or retaliated against for complaining about discrimination. So, let's say you treat me poorly because I am female, and I complain about it. You are in trouble. If you cut my hours because I complained, you are in even more trouble.

Class Action Lawsuit


According to the Legal Information Institute at Cornell University Law School,


A class action is a procedural device that permits one or more plaintiffs to file and prosecute a lawsuit on behalf of a larger group, or "class". Put simply, the device allows courts to manage lawsuits that would otherwise be unmanageable if each class member (individuals who have suffered the same wrong at the hands of the defendant) were required to be joined in the lawsuit as a named plaintiff.

In other words, when there many plaintiffs that have suffered the same wrong, it becomes cumbersome to have each one file as a plaintiff. A few plaintiffs represent the group, or "class" in a class action lawsuit.

Darden


Darden may very well have used a personality test as a smoke screen to demote or get rid of people who were older. It is not illegal to fire your better paid workers; being paid well is not a protected reason. It is illegal to fire somebody because he is older; age over 40 is protected.

My personal opinion at this time is that if all or a large majority of Darden's older servers were told they were being given an opportunity to make dirt wages for ninety days (>cough<) then perhaps it is actionable.

They would have to prove that age was the reason for the demotion. Younger people being demoted may weaken the argument; however, it doesn't mean that older people were not targeted. For example, 45 year old Joe got demoted because of his age. 20 year old Lucy got demoted because she is ADHD. Lucy's demotion does not change the reason for Joe's demotion. (Does that make sense?)

The bottom line is the plaintiffs would have to prove age discrimination. If that is possible and how to go about it must be discussed at length with a lawyer specializing in employment law.

Disparate Impact

Sometimes there is direct evidence of discrimination. For example, let's say Martha, 52 year of age, was a server at Red Lobster and heard a manager say, "We need a more youthful atmosphere around here." Later, Martha takes a personality test and is told she gets to work as an SA for a minimum of 90 days, maybe longer. The manager's comment in this scenario is direct evidence of age discrimination.

Not all discriminatory practices are direct. Disparate impact is when an employer's policies target a minority or protected group.

Wikipedia defines disparate impact as such:


"In United States employment law, the doctrine of disparate impact holds that employment practices may be considered discriminatory and illegal if they have a disproportionate "adverse impact" on members of a minority group. Under the doctrine, a violation of Title VII of the 1964 Civil Rights Act may be proven by showing that an employment practice or policy has a disproportionately adverse effect on members of the protected class as compared with non-members of the protected class.[1]


The doctrine entails that "A facially neutral employment practice is one that does not appear to be discriminatory on its face; rather it is one that is discriminatory in its application or effect."[2] Where a disparate impact is shown, the plaintiff can prevail without the necessity of showing intentional discrimination unless the defendant employer demonstrates that the practice or policy in question has a demonstrable relationship to the requirements of the job in question.[3] This is the so-called "business necessity" defense.[1]


Disparate impact contrasts with disparate treatment. A disparate impact is unintentional, whereas a disparate treatment is an intentional decision to treat people differently based on their race or other protected characteristics." 


Maybe the new policies at Darden Restaurants ended up having a disparate impact on older servers. The second paragraph in the quote declares that the employer may be found of guilty of disparate impact discrimination even if the discrimination was unintentional. Therefore, the servers may not have to prove intent, only that the result of the personality tests and other factors was that older servers lost their jobs and pay.

I'm not a lawyer. I am not trying to give anybody false hopes; I truly know nothing more than I have written. The best way to address the issues in this blog post is to discuss them, and any other issues you may have, with an employment lawyer who represents labor.

Best of luck, I'll be watching.

Saturday, July 28, 2012

Unemployment Benefits for Darden Workers

In general, unemployment benefits are given to workers who have become unemployed through no fault of their own. Per Wikipedia:

"Americans out of work who do not qualify for unemployment insurance include part-time, temporary, and self-employed workers, and school graduates. There are five main reasons unemployment benefits would be declined: not being able or available to work, voluntary separation from work without a good cause, discharge connected to misconduct, refusal of suitable work, and unemployment resulting from a labor dispute."


Darden servers who have been demoted to SA:

1) are available for work;
2) if they quit due to the demotion, they had good cause: they can no longer support themselves on the SA earnings;
3) there was no misconduct;
4) they are not refusing suitable work because the wages and tips the SA earns are not enough to live on; and
5) arguably, there was no dispute. Darden gave a personality test to long-time workers, and changed the job description and pay for many of those workers.

I encourage any demoted server to please contact your state's local unemployment office. Rules vary some from state to state. I have heard rumors that Darden SAs are receiving unemployment benefits. Plus, it can't hurt to try.

Best of luck to all.

EDIT: Some of you have written that you were told you would be an SA for 90 days, then reconsidered. You may argue that you can not afford to subsist on SA wages for 90 days. This is a reasonable argument.
EDIT TWO: Also, the 90 day SA to server is not a guarantee. Some SAs may not become servers after 90 days.

I am rather "publish-button" happy this morning as I sit here with coffee. :-)

Thursday, July 26, 2012

Rest Breaks, Meal Breaks, Smoke Breaks

Ask the Waitress!

"Is it legal for restaurants to keep servers on the floor without a lunch break?"


Welcome to the wonderful world of unregulated labor. In general, it seems to be non-unionized blue collar workers who suffer the most indignities and abuses. Non-unionized white collar workers, such as administrative assistants in offices, are generally able to use the bathroom and eat lunch without all holy hell breaking loose.

Federal law does not require lunch, snack, or rest breaks.

Under federal law, short breaks (for example, five  minutes or twenty minutes) are compensable. So, if you are lucky enough to have an employer who will let you sit for a few minutes and wolf down some protein at some point over the course of six or seven hours you don't have to clock out.

A meal break that is at least thirty minutes long is not compensable, so the employee would clock out for an actual lunch break. However, the federal government does not require that the employee be given a lunch or meal break. 


The federal government, in it's infinite wisdom, leaves it up to each of the fifty states to either leave well enough alone, or grant workers the right to breaks. 


The state of California is a good example of a state with worker rights to breaks. Employees must have a paid rest period of at least ten minutes for every four hours worked. Not only that, the rest period must be in the middle of shift. Employers can not get away with forcing workers to take a break at the beginning or end of the shift:



"... employers must authorize and permit nonexempt employees to take a rest period that must, insofar as practicable, be taken in the middle of each work period."

Diapers: Not Just for 
Babies Anymore!
Waitresses at Hooters in California won a class-action lawsuit which, among other things, forced the employer to start obeying rest break laws. Of course, the California Restaurant Association ("CRA") had the amusing reaction of saying that the poor employees now had to take unwanted breaks (boo, hoo) instead of "making a decision that works for them." 

One problem with that argument is that had the waitresses been able to "make a decision that works for them," they would not have needed to sue to get their rights to breaks enforced. The wording in the CRA quote is sinister, because often the decision that worked for them was to not take a break, because taking a break meant weakness and loss of her job. 

Back to unregulated labor in unregulated states. Unregulated laborers are working in the Dark Ages. One of the things that upsets me the most is that smokers get breaks to smoke, and non-smokers get nothing. I never get to go outside and take an "air break." And, yes, I am addicted to air. 

I remember one shift in the little diner; two waitresses (one was me) and the owner. Just got through a busy time in the shift; all the tables had to be cleared. What does the other waitress do? Goes outside to smoke. Did I clear her tables? Not a chance. The owner even was irritated at the other waitress' timing. As a fellow non-smoker, she said she felt that smokers had it easier because they took breaks. Not that she did anything about it. 

Of course, if I had decided to take up the deadly habit, then I could have gone outside and put my feet up for a few minutes, as well. Which is only part of the temptation for new waitresses to start smoking. 

Nicotine is an appetite-suppressant. So, a worker with no right to do something as reasonable and necessary as eat something during the course of the day or night might be tempted to inhale the drug and quell her rumbling stomach. Plus, she gets to hang out and chat with the other smokers, you know, the only waitresses who get to take a break in some restaurants. 

Of course, different employers in unregulated states may choose to offer benefits that they are not required to offer. In that same diner, I was given a free meal each shift I worked. The boss was under no obligation to offer that. The point is that workers have no expectation of being treated well in unregulated states. 

And none of this is an attempt to offend or insult smokers. We all know that smoking is dangerous, unhealthy, and physically addictive. My point is that the lack of rights to breaks at work actually encourages workers to start what will be a life-long habit that may shorten and end their lives. The more draconian the employer policies, the more likely people will "need" to smoke. 

How about ensuring that all workers get reasonable breaks, and let them breathe some fresh air, instead? Just a thought. 

Thanks for Asking the Waitress! 

Tuesday, July 24, 2012

Fraud

Ask the Waitress!

Received an email from a waitress working at a cocktail lounge. She claims her employer routinely pours (or tells the employees to pour) cheap liquor, such as well vodka, into expensive liquor bottles. The end result being that customer orders Grey Goose, pays for Grey Goose, and drinks well vodka.

The writer is concerned that this may be illegal. Yeah, it's illegal.

The definition of fraud is an intentional deception made for personal gain or to harm another. In this case, the fraudulent behavior serves to make the owner more money = personal gain.

Fraud is a criminal offense, and it does not matter in which state you work. You may not commit fraud.

Last December, the ABC in New Jersey shut down the Laguna Grill and Martini Bar in Brigantine for seven days during the summer -- prime money-making season. In addition, the owner, Dominic A. “Tony” Pullella, was charged a $23,000.00 fine. 

From May to September, Pullella defrauded numerous customers by allowing them to order top-shelf, expensive liquors, charging them full price for the expensive drinks, but serving them drinks made with well booze. (Well is the cheapest liquor available.) This behavior is illegal in all of the fifty states.
Naughty, naughty!
Don't do this.


It is also true that since prohibition ended in 1933, each state chose whether to control the sale and distribution of alcohol on the state level, or to leave that up to local counties. I believe that there are dry counties in the United States of America to this day. The National Alcohol Beverage Control Association has information on the different states. 

In some or all states, it is illegal to pour anything into an alcoholic beverage bottle or keg, drum, etc. Let's say there is an almost empty bottle of Kettle One vodka in your bar. Your less than efficient co-worker opened a new bottle of Kettle One. You now have two open bottles of Kettle One, and a manager who gets a bee in her or his bonnet if anything is "over stocked" in the small bar. (I am not-so-fondly remembering the bar manager at my very first bartending job; that is another story.) In an attempt to prevent screams of managerial indignation, you transfer Kettle One vodka from the almost empty bottle to the almost full bottle.

You just broke the law. (In at least some states -- not sure if this is true in all fifty.) Admittedly, you broke the letter of the law and not the spirit of the law, no pun intended. Heh.

In addition to preventing fraud, this law also attempts to prevent a rather disgusting practice of some people who serve draft beers. Pouring drafts can be messy; I imagine back in "good ole days" it was even messier. Bar owners used to have grates over collection bins on which the bartenders stood. Beer would spill through the grate and into these bins while bartenders poured the pints. Later, the bins would be emptied right back into the kegs, to be poured again. Yum.

These day, serving anything that has been dropped on the floor is generally frowned upon, and for good reason.

Thanks for Asking the Waitress!

Saturday, July 21, 2012

Darden's Personality Test


The following is my own, personal and subjective qualitative analysis of the personality test that Darden current (and would-be) servers were required to take.

The test consisted of 105 questions. While there was no time limit to the test, the software did keep track of how long it took each individual test taker to complete the test. I have been unable (so far) to find any commentary on the implications of how long a person took to finish the test.

 Two common responses to the test have been "the questions were repetitive" and "the questions were irrelevant, personal, and offensive."

Repetition

As I have mentioned in comments, repetition in assessment tests is common. This is to ensure that the test taker is giving consistent answers. If she gives inconsistent answers, the results of the test may not be valid.

Irrelevant, Personal, Offensive

Sometimes questions seem irrelevant, but are actually measuring the quality that is being tested. For example, let's say John is taking a Child Abuse Prediction test. The test asks him questions about his pet dog. Seemingly irrelevant, but a person who kicks his dog may be more likely to hit a child. In a round-a-bout way, the test is looking for John's potential for abusing a child.

If the test questions were obvious, such as "have you ever wanted to hit a child?" then John would know what is being tested, and simply lie to pass the test.

The questions were very personal, which may seem inappropriate for a work test. (At least they were honest and said, "personality test" instead of "assessment of managerial skills.") And I can understand how some people may have been offended by some or all of the questions.

Likert Scales

The first 85 questions used a Likert scale. Anytime you have a scale with strongly agree one one end and strongly disagree on the other, this is a Likert scale. Many doctors offices have posters with "I feel fine" on one end and "I am in severe pain" on the other. Patients are asked where on the poster their pain falls. These posters are good examples of Likert scales.

Qualitative Analysis

Again, the interpretation of the test questions in this blog post are mine and mine alone. If I am mistaken about anything, then the mistake is mine and mine alone. 

Looking at the first 85 questions, I attempted to place them in general categories. Questions in any given category may be worded in the positive or in the negative. One person (let's call her "Jill") will give different answers for questions in the same category. For example, "I am careful to avoid making mistakes" and "I am not a perfectionist" belong in the same category. If Jill strongly agrees that she avoids making mistakes, she will strongly disagree that she is NOT a perfectionist.  Jill is a perfectionist. 

Most of the first 85 questions seems to easily fit into the following categories:

* Work Ethic
* Mood
* Ability to Focus
* Leadership ability (or lack thereof)
* Extrovert/Introvert
* Stability and Company Loyalty; and
* Personal Relationships. 

There is most likely overlap in these categories; for example, some questions about Personal Relationships may belong in the same category as Extrovert/Introvert questions.

I separated Ability to Focus from Work Ethic because I had the distinct impression that some questions were an attempt to weed out people with ADHD qualities. For example, "Sometimes words just pop out of my mouth before I even know what I am saying," and "I sometimes lose focus at work." The first has to do with impulse control, the second has to do with focus. Lack of impulse control and inability to focus are common characteristics in people diagnosed with ADHD (Attention Deficit Hyperactivity Disorder.)

Mood

Questions such as "I never lose my temper" and "I sometimes get upset for no apparent reason" I put in the Mood category. Similar to some of the ADHD questions, these questions seem to be looking for emotional stability vs. mood swings. There was even a question about getting sweaty palms that may have been an attempt to weed out people with high anxiety.

Another question was "I am deeply moved by others' misfortunes." While I would guess that the test scorers were looking for evidence of emotional stability, this question and others like it gave me pause. They may be looking for care givers with this type of question. Or, being highly affected by the moods of others may be a bad thing because moods of others' becomes a distraction and can throw a waitress off of her game. I wasn't certain, but I decided to put the care giver questions in with the Mood category.

Work Ethic

These questions ran the gamut from "Pure luck plays a bigger role in most people's success than they will admit" to "I believe that people can control 100% of what happens to them at work." These seem to be looking for a person's chances of working hard. A person who believes they will be rewarded for their work will do a better job, or so the theory says.

Some of the care giving questions, such as "I am always ready to assist others" could be categorized into Work Ethic or Leadership.

Extrovert / Introvert and Leadership 

Questions such as, "I maintain high energy through the day" and "People do not usually look to me for direction" address extroversion and leadership ability. I would guess that corporate was looking for extroverts who enjoy and are good at juggling multiple tasks and interacting with many people.

Some of the Leadership questions seemed to overlap with Work Ethic. For example, "I often complete tasks at work before being asked to do them." Saying "Agree" to this statement certainly denotes a good work ethic. It also shows initiative and leadership ability. I am not certain whether I think corporate is looking for leaders among wait staff, however. There is an expression, "Too many chiefs, not enough indians." Everybody can't be the leader. So, I am unsure just how much leadership ability they wanted to see in wait staff.

Stability and Company Loyalty


Stability in this case means physical stability. Questions such as, "During the next two years, I do not plan on leaving the job for which I am applying" address physical stability and company loyalty. There were questions in this category about moving and length of commute. While some of the questions regarding moving may seem irrelevant, I think they all get grouped in to one category that is testing how likely it is that you will stay, or how long before you quit.

Personal Relationships 


Questions about making friends at work confused me. While friendly people probably make better waitresses, I think it is detrimental to rely on the workplace for your social life. It is okay to make friends at work; I would not refuse a friendship on the sole grounds that I work with the person. But in the end, work and friendship must remain separate. If we are friends outside of work, and I (for example) steal from the till, you can't lie for me just because we are friends. (Not the best example, I admit.) I wonder if corporate was looking for middle ground, here.

Last Twenty Questions

The last twenty questions were organized in a different way. Each question had five possible answers, but instead of a true Likert scale, each set of answers was specific to the question. For example:

How far away from home is the job for which you are applying?
A. More than a 45 minute drive.
B. Between a 30 and 45 minute drive.
C. Between a 15 to 30 minute drive.
D. Between a 10 to 15 minute drive.
E. Less than a 10 minute drive.


Most of these last twenty questions did fit into the above categories. Those that didn't asked about high school education and family.

A nineteen year old may not think twice when asked about her high school grades. A forty-five year old, on the other hand, might wonder how it could possibly be relevant today. If that forty-five year old earned additional education, then being asked about high school grades seems downright surreal.

There were two questions that asked about family, "How far away is the family member that lives the closest to you?" and "How many family members live within 25 miles of where you live?" There are so many reasons that people move. I can't imagine these two questions should have any weight in the assessment, or should really have been asked. 


Conclusion


I don't know if any of this helps Darden servers and SAs. I dissected the test some in an attempt to shed a little light on the shenanigans at Darden corporate. My analysis is most definitely NOT an attempt to say that any of this is okay. It must have been a demeaning experience, and I am sorry for those of you who went through it. 


The thing that throws me the most is that the test was given to current workers regarding their current positions. Usually, assessments given to current employees are testing the worker's potential for promotion. For example, a waitress may take a test to see if she would make a good manager. Once a person is hired, employers don't (usually) give them an assessment to see if they are any good at the position they are already working in. Employers look at the employee's record and speak with the manager to see how people are doing, or so I thought. 


At this point, I guess it's academic. And since I'm just a stupid waitress, I probably got it all wrong. ;-D

Tuesday, July 17, 2012

Darden Bought Yard House Restaurants

Yard House Restaurants is a chain located in various states across the country, with clusters in Southern California and Coastal Florida. Yard House was founded by Steele Platt and the very first location opened in December of 1996. You can read Platt's entertaining history at Our Founder on the Yard House Restaurants website.

Yard House features classic rock music, multiple draft beers and a relatively diverse menu. They have charity fundraisers on a regular basis, and there is no mention on the website of using female body parts to boost sales. By jove, I think the waitresses may actually be fully clothed. I like the place already.

Unfortunately, this post is not so much about Yard House, but about Darden Restaurants. Yes, Darden is the same organization that just demoted a bunch of servers to server assistants based upon a top-secret algorithm that includes a personality test with seemingly irrelevant questions. The price tag for the all-cash transaction is $585 million. 

It seems that Mr. Platt's riches to rags to riches story may end with riches.

Clarence Otis, the CEO of Darden, was quoted in the Las Vegas Review Journal:

"With this addition, Darden's Specialty Restaurant Group will have nearly $1 billion in annual sales."

I guess Otis is doing all right, as well. 

Sunday, July 15, 2012

And The Kitchen Grew Green With Envy

Bad news for waitresses.

There are lawsuits being filed back and forth in the Ninth Circuit Court of Appeals. The Ninth Circuit is in some of the Western states. Remember: California and Oregon outlawed tip credits. Waitresses and waiters in California and Oregon make full minimum wage.

Now, sane people might respond to this situation by saying, "Oh, that's great. Food servers in California may actually be able to support themselves. This is progress. No one should hold down a full-time job and live in poverty; that doesn't make sense!"

Aren't sane people awesome? Unfortunately, this is the restaurant industry, and it is anything but sane.

The Department of Labor (DOL) says that tips may only be shared and pooled among front of house staff. The National Restaurant Association (NRA) says that if there is no tip credit (i.e., waitresses make full minimum wage,) then kitchen staff and dishwashers have a "right" to server tips. The DOL 'stuck to it's guns,' so to speak, and told the NRA that server tips were for the front of house, only. The NRA has filed another suit against the DOL because they want to use server tips to pay kitchen and dishwasher staff in California. 

Does anybody else feel like it is impossible to improve one's situation? The minute the waitress gets thrown a bone, the cook sucks out the marrow. And the fact that we are being pitted against each other makes the restaurant workplace worse.

Many of you guys in the kitchen are probably screaming, "But we make minimum wage!!!" Bear with me; there are a lot of dynamics here and I am not claiming that the kitchen's needs should be ignored.

1. Sure, nobody can survive on minimum wage alone, and if cooks are being underpaid, this must be dealt with.

2. It is not the responsibility of the least powerful employees to pay other employees. It is the responsibility of the restaurant owner to pay his or her staff.

3. In general, but not always, cooks are usually men and servers are usually women. The gender dynamic is playing out in decisions regarding who gets server tips. Yes, we have a culture of privilege and entitlement in this country. Men enjoy privilege over women, whites over blacks, straights over gays. Can't see it? Open your eyes. If women were toiling in the kitchen and only men were on the floor interacting with customers, we wouldn't need laws protecting server tips. Nobody would even think to ask the privileged to pay the underclass.

4. If your boss claims poverty, ask him what he draws every two weeks (i.e., how much money he makes in personal salary.) He won't tell you, but you will have made your point. Actually, you might not want to do this because you might find yourself off of the schedule. So, if you want a better sense of what he makes, look as what he drives. Many restaurant owners have this magical belief that they can drop unspeakable amounts of money on brand new, fancy cars that are, essentially, toys that run. Then, they turn around and claim poverty and expect employees to believe them. It's magic!

Trickle down has never worked because greedy people would prefer to spend lavishly on themselves and not conserve resources. By conserving resources, for example, driving a Honda (I love Hondas, they run well and are a good value) the boss would have more money with which to pay employees (because he would "need" to draw less and could put more back into the business.)

And that is really the crux of it. If a boss can't pay his employees, then he can't afford the bright red convertible and the brand new Harley. Sure, people have a right to spend their money on what they want, but only within reason.

Bosses figure out what to pay employees by looking at how little they can pay them and still be legal. If nobody takes the job, okay, offer a little more. See how little you can get away with paying a new hire.

If the kitchen is starving, then the boss needs to look at how bad their pay package is. If both the front and back of house are making minimum wage, I'm not surprised that the kitchen is green with envy. But the solution to siphon server tips to pay cooks is misguided.

California waitresses may not be starving with the combination of minimum wage plus tips. Let's be happy for them, leave the front of the house alone, and push restaurant owners to take care of their kitchen staff.

Perhaps, in a perfect world, the front and back of house would not allow owners to pit them against each other but instead would appeal to the DOL for fair wages to be paid by employers for all. In a perfect world.

Instead of beating down the DOL by suing them to allow for more abuse of labor, perhaps we should be looking at raising minimum wages to reasonable levels that reflect the cost of living. And built in raises for both merit and the cost of living. The NRA will scream "that will kill jobs and make the price of eating out too high!" No, it won't. It will most likely create jobs because more people will be able to afford eating out at the higher prices. But it may very well put a cramp in a greedy owner's style.

Or maybe the owner should trade in the Lamborghini for a Honda. 

UPDATE 7/16: 

Four restaurant associations are filing suit against the DOL. The Ninth Circuit includes numerous states on the West Coast, including Oregon, Washington and Alaska. It seems California may not be involved, but restaurant associations in Oregon, Washington and Alaska are represented in these proceedings.

Restaurant Associations Oppose DOL on Tip Sharing

Restaurant Groups Sue DOL Over Change to Tip Pool Rule






Saturday, July 14, 2012

When The Gamble Pays Off

The story of the dying man whose last wish was to leave a random waitress a $500 tip has gone viral. The first lucky recipient was working at a pizza joint.

Mashable reports that strangers raised as much as $10,000 to made this dying man's wish come true, which seems to indicate that there will be nineteen more lucky waitresses.

It is an all-around, feel good, warm and fuzzy story. I just can't resist raining on the parade, just a little, and pointing out that it would be wonderful if people tipped well in general, instead of waiting for somebody to die to do so. Heh.

Okay, go back to feeling warm and fuzzy. And enjoy your weekends!

Friday, July 13, 2012

I Told You Waitressing Is Dangerous

On December 30, 2011, a waitress was severely beaten by four customers because they received the wrong meals. The waitress was working at a Red Lobster restaurant in Illinois.

There are so many things I can say about this; however, I am going to keep it short and invite you all to read the story at Daily Mail. I chose not to watch the videos because I am rather sensitive to violent images.

What strikes me after the initial shock that diners would commit assault and battery on a waitress, causing injuries including a black eye, is that there is no mention of management in the article. I believe the videos were taken by other customers on their cell phones. Anybody who has the stomach to watch is welcome to elaborate in the comments section.

The article claims that the four women left the restaurant after the assault. While leaving, they were still unidentified. I assume somebody called the police because the women were later identified and at least one arrested. 


I told you waitressing was dangerous work. We don't get paid enough to put up with this ****. 

http://www.dailymail.co.uk/news/article-2126388/Watch-fight-women-punched-pushed-Red-Lobster-waitress-threw-drink-face-brought-wrong-meals.html

Thursday, July 12, 2012

Darden and Kenexa

Kenexa is the company that Darden hired to create and administer the personality tests that were used to determine who stays on the floor and who is demoted to "server assistant." So, of course, I  became quite curious about exactly what and who Kenexa is. Turns out that they are a huge, multinational company. While I do not think that I have uncovered any smoking guns by perusing their website, I must say that they seem to brag most about how many other companies they have acquired or bought, how much they have grown and how much money they are worth. Instead of appealing to customers by bragging about the great work they produce, the website seems geared toward attracting additional investors. Kenexa is good at making money. 


Kenexa claims that they have been in the business of studying human behavior for twenty-five years. 

According to the Kenexa website, the management team of Kenexa consists of three people:

Nooruddin (Rudy) S. Karsan helped found Kenexa in 1987. His background is in mathematics and actuarial science.

The Society of Actuaries (SOA) describes and defines "actuary:"

"An actuary is a business professional who analyzes the financial consequences of risk. Actuaries use mathematics, statistics and financial theory to study uncertain future events, especially those of concern to insurance and pension programs. They evaluate the likelihood of those events, design creative ways to reduce the likelihood and decrease the impact of adverse events that actually do occur."


Well, a good psychologist, just like a good actuary, must understand statistics. But an actuary need not have any knowledge of personalities and what makes people tick. Some actuaries might agree with me that treating employees with respect and dignity might result in less money spent training new hires because treating people well increases the chances that they will remain in your employment. Some psychologists may well agree with me on that, as well.

Troy A. Kanter joined Kenexa in 1997. He is the President and Chief Operating Officer. He is referred to as "Mr. Kanter" and is said to have graduated from Doane College; therefore, I assume he has a Bachelor's Degree as opposed to a graduate degree. Obviously, he is not a licensed psychologist. He is, however, the human resources leader at Kenexa.

He oversees "content development." According to Kenexa:

"Since Mr. Kanter joined the company in 1997, Kenexa has expanded its behavior sciences offerings, and Mr. Kanter has built a practice founded in measuring, predicting and enabling workforce performance."

The third of the big three is the Chief Financial Officer, Donald F. Volk. He has a background in Accounting and Taxation.

So, Kanter seems to be the top guy with knowledge of human resources.

They do hire people with backgrounds in psychology, but they call these employees "consultants." Common educational requirements include:

"Ph.D. or MSc in Industrial and Organizational Psychology or Organizational Behavior or area of Social Sciences or an MBA with Emphasis in Human Resources or Organizational Behavior. Strong proven experience in individual or organizational assessment may be considered in conjunction with a Master’s degree. Chartered Occupational Psychologist or progressing towards its’ completion."


Organizational Psychology is the study of workplace behavior. Often, assessments (tests) are given to predict success at different tasks. However, it makes more sense (to me) to give these assessments to people who are not already performing the duties that the test is supposedly predicting. (Did that sentence make sense?)

Would-be managers at Darden restaurants take an assessment that measures their ability to compute mathematical concepts, among other things. For example, they might have to compare the cost of the individual items in a meal to another meal, and then take the time it takes the kitchen to complete into account. I don't know if current managers were required to take the test to keep their jobs.

Servers, on the other hand, are asked how many of their friends they made at work. At first blush, maybe Darden is looking for friendly, sociable people... but I doubt it. Actually, in my experience some of the worst people to work with and for were those who depended upon the workplace for their social life. Have I made friends at work? Certainly. I can also work with people who are not my friends. The manager who would give her waitress friends their way so that they would include her in social activities was a huge detriment to the restaurant.

I remember having a disagreement with a different manager one evening. I thought one thing, she thought another, and it was her call. She went with what she thought. This person has integrity and did what she thought was best -- I don't have to like it and I do have to accept it, which I did.

We were (and are) also friends. Toward the end of the shift as we were cleaning and closing, she was in tears. Literally, she was crying. She thought that because she made the decision she made (which may have resulted in a bad outcome for me) that I would no longer be her friend. My heart broke. The fact that she thought I would be so petty killed me. Of course, her friendship was important to me and of course, she was in charge. The two are separate.

The point is that it is hard for me to guess why Darden's personality test had so many questions for servers about their social relationships.

Many Darden employees who took this test have told me that many questions were repetitive. While this must have been annoying, it is no surprise. Lots of personality, IQ, and other subjective psychological tests deliberately ask redundant questions to see if the test taker will give the same answer. When test takers give inconsistent answers, the test is considered faulty. (When one test taker is inconsistent, it is that person. When many are inconsistent, it is the test.) 




Monday, July 9, 2012

Chance to Win $250 Until July 13

Just got this from ROC United:


"Take our GoodMaker Challenge and submit an innovative idea on how to educate consumers about workers throughout the food system & win $250! The Food Chain Workers Alliance just released "The Hands That Feed Us," our comprehensive report on the wages and working conditions facing food workers. How can we use this information to reach out to consumers and work together to improve the food system for all?

Submit an idea from June 6 to July 13 (noon PacificTime) - ONLY 4 SHORT DAYS! Our judges will select which applicants will pass to the voting round. From July 13 to July 27, we’ll open it up to public voting. Rally your colleagues and friends to get behind your effort and join the public in selecting the winner. The prize is $250 and you can use this money to implement your idea in partnership with the Food Chain Workers Alliance.      Connect with this challenge at Twitter at @GOODmkr and @Foodchainworker."




So, go for it, guys! :-) I am considering suggesting we choose a night to make all diners take a personality test. Maybe the results determine which menu they may order off of. Or whether they get to eat at all. Heh. 

Monday, July 2, 2012

Rue the Wretched Restroom

Ask the Waitress!

This just in:

Can waitresses be required to clean restrooms as part of their duties? Clean up after "accidents"?


One of the paradoxes of the waitress job description is that there isn't one. In most states, waitresses can be asked to do anything, with the exception of illegal activities. So, the short answer to this question is that, depending upon what state you live in, you may be asked not only to refill soap dispensers and make sure the toilet paper roll is full, but also wash the diarrhea spray  off the walls around the toilet and mop up "accidents." Then back out to grab plates and walk food.

When Waitresses Clean Bathrooms

Nobody applies for her first waitress job expecting to clean the bathroom. She is much more likely to be thinking about interacting with customers and learning the restaurant's menu. Many are quite reasonably surprised to discover that disinfection of a public toilet gets swept into her food service job.

Please know that I do not look down on people who work as janitors, house cleaners, and sanitation engineers. As a matter of fact, I appreciate those who clean and clean well. My point here is simply that if someone applies to work as a maid, she will expect to clean bathrooms and perform other cleaning duties. A maid would not expect to make drinks.

In many restaurants, the wait staff are the only people who clean the bathrooms. This saves the owner money, but creates other problems.

Cooks and chefs know kitchen and food sanitation. They wash their hands, wear gloves during some food preparation, clean surfaces, clean the surfaces again, keep some things cold so they don't go bad, and other things hot so they don't go bad... you get the idea.

Nobody trains waitresses to clean the bathroom beyond, "Here is where we keep the Windex." Nobody is given gloves; I have had jobs in which I brought them for myself and jobs in which I used gloves from the kitchen supply. Windex and paper towels do most of the cleaning; usually there is something else for the toilet bowl and at some point the floor gets mopped. I remember working in a diner that had a mop that must have been older than I was. The mop head was black. I think it filthed the wash water and anything else it touched. The owner considered a new mop an unnecessary expense.

Non-Tipped Work

Whether you agree that it is unreasonable to expect wait staff to perform bathroom janitorial services, or whether you think I am just whining, there is the issue of tipped vs. non-tipped work.

Tipped employees make a lower minimum wage than non-tipped employees; tipped minimum wage is as low as $2.13 per hour in some states. The Department of Labor requires that a minimum of eighty percent of a tipped employee's time be spent performing tipped work.

If a tipped employee spends more than twenty percent of her time performing non-tipped work, the employer must pay her full minimum wage (currently $7.25 per hour or more) for the time spent on non-tipped duties.

So, in plain language: Let's say a waitress works a five hour shift. She spends four hours on the floor and one hour cleaning and performing sidework. Only twenty percent of her time was spent on non-tipped work, so she earns $2.13 for five hours plus tips.

Let's say a waitress works a six hour shift. She spends four hours on the floor and two hours performing non-tipped work. The employer owes her $7.25 for one hour, $2.13 for five hours and she also earned her tips. Make sense?

Lack of regulation in the restaurant industry makes it easy to shove all sorts of responsibilities on to the waitresses' shoulders. Some side work is reasonable, such as polishing silver, polishing glasses, vacuuming the dining room. Remember: side work is non-tipped work.

Add to side work cleaning the bar and restocking the bar. Washing dishes. Cleaning the bathrooms. Washing windows -- outside of the building. I got yelled at by a manager once because I didn't take it upon myself to shovel the walkway. I was supposed to magically know that I should be outside shovelling the walkway in my apron and Danskos instead of taking care of the dining room. Silly of me.

It takes times to complete all of the various and sundry chores that get hoisted onto the waitresses. But, if she spends more than twenty percent of her time on side work, she becomes expensive. That is why waitresses get grief for not working at the speed of light.

The way to get ten million things done in a short amount of time is to cut corners and not bother with being thorough. Which comes back to why waitresses should not be paid $2.13 an hour to clean bathrooms.

State Laws


Some states mandate that wait staff may only be asked to do side work that specifically relates to the dining room. To the best of my current knowledge, California, Massachusetts and New York are states in which waitresses may not be asked to work outside the dining room. In these states (if I'm correct,) I believe waitresses would have a good argument that restroom sanitation is not a dining room chore.