UnderCover Waitress: November 2012

Tuesday, November 13, 2012

Bribery, Blackmail, Extortion

Ask the Waitress!

Got a question about an extremely sticky and slimy situation on the dining room floor.
I have a question about tip pooling. We have several stations that are money makers, several stations that are moderate money makers, and other sections that don't seem to do as well as the other stations. Every server is aware of this and obviously wants to be in a money making section.
These "good sections" are given to the servers who tip the head guy more money. Every server knows that if you tip this person more (5%  or more of sales $1000- $1500) you are immediately scheduled in the big money stations. It is killing morale. 
Anyone who has approached management has had their schedule altered. One server was threatened with termination if he complained again. Are they breaking the law? And if there is no law, shouldn't there be? 

Really, there is two different questions. "Is this illegal" and "Shouldn't it be illegal?" Easy to answer the second question: Yes! The first question, however, demands more discussion. Let's start with some definitions.

Bribery: According to the Free Online Legal Dictionary, bribery is "the offering, giving, receiving, or soliciting of something of value for the purpose of influencing the action of an official in the discharge of his or her public or legal duties."

Blackmail: "The crime involving a threat for purposes of compelling a person to do an act against his or her will, or for purposes of taking the person's money or property."

Extortion: "The obtaining of property from another induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right."

We can rule out extortion because there is no threat of violence or force. This situation sounds like bribery to me.

The Portland Restaurant Worker's Association has a good page that describes tip legal jargon.

Tip Pool: Tip pools may be mandatory. Servers may be required by restaurant owners to give a certain amount to other, traditionally tipped employees, such as bussers, hostesses, bartenders. The Department of Labor (DOL) spells out that reasonable tip pools may require servers to share either 15% of their tips, or 2% of their sales.

Please note that the DOL does not specify how large or small a percentage of tips must go into the tip pool. Requiring waitresses to put in more than 15% is legal.

Tip Out: When the term "tip out" is used in legal documents, it refers to voluntary sharing of tips. For example, a waitress may want to tip the dishwasher for giving extra help on a busy night. She is not required to.

Okay, back to the original question. Is the extra tip out truly voluntary?

The restaurant owner is requiring waitresses to pay 2% into the tip pool; this is considered reasonable by the DOL. But, this head FOH employee wants an additional 3% in return for good sections. That 3% is voluntary in that nobody will be fired refusing to tip out extra. It is also bribery.

Employers aren't legally required to have a workplace that feels fair, only one which doesn't discriminate on the basis of impermissible criteria such as race, gender, disability, age over 40, religion, in some places sexual orientation, national origin, etc. For example, if black, Jewish, or older waitresses were encouraged to tip out 5% of sales and other waitresses were given the best sections without any extra tip out, that is illegal discrimination. Everybody must be held to the same rules. The problem here is that this rule smells like bribery or blackmail.

The Equal Employment Opportunity Commission (EEOC) has this to say about Job Assignments:
It is illegal for an employer to make decisions about job assignments and promotions based on an employee's race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. For example, an employer may not give preference to employees of a certain race when making shift assignments and may not segregate employees of a particular national origin from other employees or from customers.
Nothing about favoring some employees for other reasons. Sometimes, an employee gets favored because the manager thinks she is highly skilled, other times because she has worked for the employer for a long time, and sometimes because the manager wants her friendship. In this case, people are paying money in the hopes of being favored.

Unfair Management Practices

Most information about management and labor practices is relevant to unions and organized labor. At-will employees enjoy less protection.

Whistle Blowing

There are two general types of whistle blowing: internal and external. Internal whistle blowing is complaining to management. External whistle blowing is complaining to the EEOC, for example.

Deskin Law Firm writes Retaliation by Your Employer After Making an Employment Complaint or for Whistleblowing. This document states that you can not be retaliated against for asserting a protected right. That means that if you complain to your employer that you are being discriminated against for being Asian, you can not be fired or put on a bad shift as a result of your complaint.

However, it is also my understanding that not all internal whistle blowing is protected. If you complain to management about something that is not a protected right, you may be fired or otherwise punished. It seems that the restaurant the original question asker works at is not worried that they are guilty of anything illegal; therefore, they feel comfortable threatening those who complain with job termination.

If somebody gets fired for complaining and fights for unemployment, I'd love to see the judge's face when the restaurant representative attempts to justify the tip out arrangement.

Conclusion

I want very much to find something saying that this bribery is illegal. Unfortunately, food servers are almost always (if not always) at-will employees. Tip outs are common and allowed; tipping out extra is not illegal. Rewarding those who tip out extra seems immoral and unethical, however, it may not be illegal. I would love for somebody to tell me different, and include a source.

In the end, sometimes the best thing to do is look for other opportunities.

Thanks for asking the waitress!

Sunday, November 11, 2012

Titled Kilt Deleted Scene

Well, well, well, look what showed up in my news feed after I posted Under Cover Analyzed yesterday. In Under Cover Analyzed, I wrote my impressions after watching Tilted Kilt on Undercover Boss.

This deleted scene exemplifies something I said yesterday: that Kaliane is the victim of mixed messages, and as a young women being encouraged to flaunt her sexuality and her body to make money, she had no way of knowing exactly where Rob Lynch would draw his imaginary line. Here is the deleted scene in which we watch Lynch and Shayna, the "good" waitress:



So, it is appropriate for Shayna to shake her boobs, tell Lynch to raise his skirt, and advise Lynch on how she shows off her body. But the best indicator of Lynch's hypocrisy is Shayna making verbal jokes as she instructs him to shake a mixed drink: she says he knows how to use his hands because he is a man. This does not make Lynch uncomfortable.

Kaliane, on the other hand, is reprimanded for telling jokes and suggesting her customers try a Pink Nipple, which is the name of a drink. This makes Lynch uncomfortable. I fail to see the difference.

It seems quite obvious why this scene was deleted. It blurs the line Lynch wanted to draw for the broadcast of Undercover Boss. We see the good waitress, Shayna, displaying similar money-making techniques as the bad waitress, Kaliane. In context, Kaliane didn't do anything wrong. Please do not misunderstand me: I think the entire Tilted Kilt operation should be shut down for preying upon young women. Given that, it is hard to fault Kaliane for playing the role of sex toy when that is exactly what she was hired to do. Even harder to fault Kaliane when we watch Shayna playing sex toy and not being faulted for it. Nay, on the broadcast show Lynch lauded Shayna for how great a worker she was.

Simply put: Rob Lynch is a hypocrite. The episode of Undercover Boss was crafted to make it look like some behavior is okay and other behavior is not. The show was nothing more than a spun sham, and this deleted scene proves that.

Read all of my reactions to the broadcast episode in Under Cover Analyzed. 


Saturday, November 10, 2012

Under Cover Analyzed

So, Rob Lynch went under cover as "Ryan" at the Tilted Kilt on CBS's Under Cover Boss. I'm sure it comes as no surprise that I might have some comments on the situation. Heh.

Bear with me; not everything I have to say is negative. I think there are important, underlying implications in what I saw last night that were not what the restaurant was trying to portray. Also, this may be as much commentary on the show Undercover Boss as it is commentary on the restaurant Tilted Kilt.

First, the best line of the evening came from my companion with whom I watched the show: "This is just an advertisement for the Tilted Kilt." Yeah, pretty much. No business owner would agree to have the show broadcast if it didn't make the business look good.

Restaurant Work is Hard Work

It is always fun to watch somebody with no experience on the floor or in the kitchen figure out that what we do requires skill. I greatly enjoyed watching Lynch wander around the bar looking for a bottle opener. In this moment, I believe I laughed with him. Of course, any professional would have had a wine key in a pocket or pouch.

In that brief scene, we watched him look for a bottle opener, serve a bottle of beer without a chilled glass, charge the customer incorrectly and ignore another customer. Lucky for him it wasn't busy.

Rich People Don't Get It

Four working class people got lucky last night, and I do not want to deny them their good fortune. This is not about finding fault with the four people who were chosen to be filmed at length and given money.

Rob Lynch sounds surprised to discover that working people do things like work two jobs to make ends meet, have family members with expensive health problems, and have children who, regardless of their current needs, will never be able to pay for college (in the current system.) The restaurant industry is full of people working long hours and desperately trying to make ends meet. Lynch did not meet four especially unlucky people. Lynch met four typical Americans.

Money is finite, and it is a travesty that we don't teach people how to manage money in high school. I am thinking of the cook who was given $20,000 for a family of six so he could quit his second, part-time job. Unless he knows or learns how to make money grow, he will be looking for another part-time job in one year, maybe less.

Obviously, if he invested the full $20K then he would still have to work the part-time job for his daily bills. With some good advice, a diverse portfolio and (as always) a little bit of luck he may be able to eventually quit the part-time job permanently. Money is finite. I know people who would spend a windfall like this on their credit card debt, then go back to using the credit card so they end up in the same situation. Lack of understanding about how to manage money keeps some people poor.

Yes, I know, Lynch also gave his employees money for their kids' educations and to pay off existing medical and educational debt. This is more helpful than a small pot of money to quit a job that will be needed again when the money runs out. I think Kalliane may be the luckiest of the four because she is getting steered from the wrong track to the right track early, before she has serious financial problems. So, Lynch's generosity helped people and that's great -- I mean that --but in the grand scheme of things it is a drop in the bucket. We need system-wide change so more than just four chosen people can do better for themselves.

Security

My favorite line in the show was, and I paraphrase, "Strip clubs do a better job of protecting the women than the Tilted Kilt." They do. They probably still do, for all of Lynch's promises.

For one, bouncers in strip clubs have one job and one job only: security. That's it. A customer gets out of line? He gets bounced out. Period. Nobody has the right to hang out in a strip club, and the club reserves the right to require you to leave.

At the Tilted Kilt, security is rolled into one man's series of tasks over the course of the night. Rolling silverware, dishes, maintaining tap kegs, storing and stocking and taking out garbage and recycling. Except, of course, when he is bussing tables. Who has time for security? No wonder the servers come up and complain about their treatment after the customers have left. "Security" is too busy to notice if something is amiss in the restaurant.

The employee was specific about how security training was lacking. He said he was told, "Don't hit them unless they hit you first." End of training. Lynch is wise to express concern; however, while Lynch and the producers of Undercover Boss are careful to say often that security will be improved, we never hear how Lynch plans to improve security. Lynch makes a point of saying on camera that the employee handbook gives security guidelines, but never lets on to what those guidelines are. Which brings me to my next point:

Lying Loud and Often

History professors will tell you: history has shown repeating a lie often and in a loud voice will cause some people to believe you. Fortunately, this strategy backfired recently for Romney. I didn't fall for it from Lynch.

I lost track how many times Lynch said, "We do everything we do with class." Not! Dressing women in push-up bras with their cleavage spilling out for all the world to see lacks class. You can't get around that. You can't get around the fact that Tilted Kilt waitresses are dressed for the strip club. It lacks class. Everything you do, Lynch, does not have class. If you wish to have class, you must dress your employees in uniforms with class. An overabundance of skin is not classy, it's slutty.

Lynch wants it both ways. He can't have it both ways. His establishment lacks class.

He gets on Kalliane's case for telling dirty jokes. That was the line Lynch claims "we do not cross." How was she supposed to tell? I felt sorry for her watching last night. I saw her as the victim if many mixed messages. When Shayna (in a different location) makes a point of deliberately and forcefully shaking her boobs back and forth while mixing a drink, this is a line it's okay to cross. Both types of behavior lack class, but Lynch approves of the latter. Very confusing for a young employee who is getting better tips for her "inappropriate" behavior while wearing inappropriate clothing.

Family

Really? If my family required me to run around nearly naked I'd disown them. I guess only skinny women can be a part of Lynch's family. I'd love to talk to his daughter in private and get a sense for her true feelings about the Tilted Kilt. I have no idea what those might be.

Tilted Kilt also tries to bill itself as a family restaurant. Again, saying something repeatedly does not make it true. Lynch refers to "his competition" possibly being crass. Tilted Kilt's uniform is much more crass than Hooter's uniform. Of course, I think anybody who would bring children into either restaurant needs his or her head examined.

In closing, someone left a comment here recently that sums it up well: a family restaurant shouldn't need "security." I agree; but a crass establishment that preys on young women does.

More hypocrisy here!

Wednesday, November 7, 2012

Tilted Kilt on Undercover Boss

Judging only from this 31 second preview, Rob Lynch of the Titled Kilt already shows that he is the poster boy for hypocrisy.

He dresses his "entertainers" in push-up bras that cause their cleavage to be spilling out for all the world to see, bare midriffs, and skirts as short as hot pants. The young women who sign up to prance around in this costume know full well that the more they flirt with ugly, horny men and pimply-faced twenty-somethings, the more money they will make in tips.

On camera, Lynch chides a flirtatious bodacious for making him feel "uncomfortable." That what she does to make money, and guess whose idea that was?!? Equally good for ratings is her response that it must be because Lynch is married. 




Admittedly, this is nothing more than a 31 second teaser. It is possible that Lynch and the Tilted Kilt will redeem themselves in the full show and display for America not just cleavage, but what a wholesome, family atmosphere is in the Tilted Kilt. Possible, but extremely unlikely.

Here is what I had to say after watching the full episode: Under Cover Analyzed. 

Mark your calendars for November 9! 

Saturday, November 3, 2012

Waitress Moms

I can't let election season end without commenting on Waitress Moms. We've all heard the term, no? According to Globe and Mail, Waitress Moms are white, uneducated and working class women. I might add, they don't sound very bright.

I know a lot of waitresses. They come in all colors of the rainbow, and much to the chagrin of self-important customers who must feel superior, waitresses also have all levels of education. "Waitress Mom" was coined to describe a female demographic that is easily duped because she does not read nor analyze news sources. Therefore, she is fair game for dubious political advertisements on television. Two paragraphs from Globe and Mail:


Waitress moms abandoned Mr. Romney in big numbers in the wake of his “47 per cent” remark. Many of these women may not make enough to pay income taxes, but they resented Mr. Romney’s suggestion that they are “dependent on government.”
 Yet, these waitress moms had a lot to do with Mr. Romney’s rise in the polls after the first presidential debate on Oct. 3. The precariousness of their economic situation – millions of working-class women have been unable to find full-time employment in the past four years – led them to take a second look at the Republican nominee.

The article goes on to point out that Waitress Moms favor Obama for his stance on women's rights to health care, including preventive health services and abortion. As far as the news is concerned, Waitress Moms seem to flip-flop and change their minds as often as Romney.

I thought the Dallas News article, "Waitress Moms" May Serve Up Big Impact On Presidential Election, make the demographic sound especially, well, stupid. A single mother whose children receive Medicaid is quoted as saying "I don't want [their Medicaid] messed with" but is considering voting for Romney. And this from another Waitress Mom considering Romney:
“Women worked so hard to get where we are today and to take our rights away from us is — no,” she said, shaking her head.
Well, let's see: Romney and Ryan wish to repeal Obamacare and turn Medicare and Medicaid into a voucher system. "Voucher system" boils down to once you have used up your credits, you pay out of pocket or go without. Obama supports the idea that this Waitress Mom's children have access to health care. And what about women's rights? Ryan thinks your 15 year old sister's rape and subsequent pregnancy is a precious little bean and gift from G-d. Obama supports women's rights to control their bodies and their health care.

The president is a consistent man; he also supports Lily Ledbetter equal pay for equal work. Which brings me to why Waitress Moms say they are considering Romney: the economy. Which blows my mind; Romney does not support the government protecting women from pay discrimination in the workplace.

I think a big part of the problem is that people do not understand all of the various forms of income. Salaries, wages and tips are not the half of it; these are the types of working class income that people who work for a living must pay up to 35% taxes. Investment incomes, interest, capital gains, fees, bonuses, and more are all taxed at lower rates, but they are income. If you can swing it just right, you don't even need to work. Should you not pay taxes on all types of income? Obama will raise taxes on these other forms of income, not on some waitress's tips.

Back to Waitress Moms, Bryce Covert, writing for Forbes, gives more credit to the ability of Waitress Moms to analyze the message from both candidates. However, she is too disturbed by the fact that a Waitress Mom can think that she must change the name given to the demographic: white, uneducated women in the working class are dubbed "Secretary Moms" by Covert.
"...men can no longer graduate high school knowing they can easily land a factory job. But it’s hit women just as hard. These are the waitress moms, but they might be better described as secretary moms, because this mid-wage job loss has been concentrated among secretaries and administrative assistants." 
She is correct, but I thought the term Waitress Mom was coined, at least in part, because those who lost their administrative assistant jobs went to work as waitresses. Which has everything to do with the fear of more job losses.

It seems to boil down to whether a voter wishes to continue to trust "trickle down" and giving tax breaks to the wealthiest Americans, or whether the American voter will choose to even the playing field by building a society that works together. Tax the wealthy, build the infrastructure, and give the middle class the breathing room to keep the economy going. As long as we continue to pander to the lies of the greedy billionaires, the majority of American citizens will be hungry, cold, and wondering where all the jobs are.

Covert ends her article:

"... women feel the pain and know that everyone needs more help in a down economy.
 Obama’s lead with women still holds with those who have a college degree, who also gave him 52 percent of their votes in 2008. But a new allegiance from working-class women could add even more momentum this time around. Secretary moms, out of work and feeling the burden of difficult times, may be turning toward a Democrat in the hopes of giving everyone a better chance to escape this mess."

I hope she is right.