UnderCover Waitress: Wage Theft is Not How the Industry Works

Wednesday, July 17, 2013

Wage Theft is Not How the Industry Works

Ask the Waitress!

I am brand new to this whole waitressing thing, and have a question. 
I "trained" for 4 days receiving no tips. I was paid 3.50 an hour to watch a waitress take 3 orders, and then I was in charge of seating people, taking their drink orders, clearing the tables, and doing dishes for the rest of the 4 days.  But my boss is saying that is the way it works, and that in the next couple weeks i'll make more than minimum in tips so it will all average out. I was paid in cash for "training." And I'm just double checking that this is the way the restaurant business really works, because it seems to me that you would have be paid minimum wage for the time you train, if they are giving you no tips. But as I said I know absolutly nothing about the restaurant business so I could just be over thinking it.    
You are not over thinking anything. Remember that old saying, "if it looks like garbage, smells like garbage, etc... then it probably is garbage." 

But let's get specific. 

I don't know what state you are working in. Some states allow a training wage for various industries that is lower than minimum wage. However, I have not heard of a training wage in any state that is less than $4 per hour; also, if that were the case your employer would have informed you of the training wage.

Your employer paid you in cash for training to keep it off of the books. If he gets audited, he won't get caught as easily. Legal training wages do not have to be kept off of the books. 

Let's assume you live in a state that allows a tip credit but does not have a training wage. Therefore, during training you must earn at least minimum wage. If you were receiving tips during training, and you did not make full minimum wage, your employer would have to make up the difference. If not, he is guilty of wage theft. 

Trainees do not customarily earn tips; therefore, you should have been paid full minimum wage for the four days you trained. 

I can see what your employer is doing, however. He is trying to say he does not owe you a tip credit for training because it will soon average out. Technically, however, he is wrong. 

If you have one waitress shift in which you don't make minimum wage, and another shift in the same week that makes up the difference, your employer may not owe you anything more. For example: 

Tuesday night slow shift: 6 hours, $3.50 per hour + $10 in tips = less than minimum wage. 
Wednesday night fast shift: 6 hours, $3.50 per hour + $200 in tips = more than minimum wage for both nights combined. 

You, however, were not a tipped employee during your training shifts. Therefore, your employer is guilty of wage theft. 

If you wish to act on this, I recommend you give the Department of Labor (DOL) in your state a call. You are protected from retaliation if you complain to the government agency that oversees the problem at work. Also, the DOL may correct the wrong for all employees, and stop the illegal practice from happening. 

For the record, if you complain directly to the employer he can fire you with impunity. You could, if you wanted to, sue him in small claims court for the wages and perhaps punitive damages, but not for wrongful termination. You are not protected from retaliation for complaining in-house. 

Good luck. 


  1. Sheesh... it's one underhanded thing after another, it seems...

    1. Lack of regulation seems to breed collusion. The temptation too great and greed wins.


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