UnderCover Waitress: August 2013

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Friday, August 30, 2013

Florida Server Tips and Dine and Dash

Ask the Waitress!

I am in Florida. I thought it was illegal for supervisors and management in the restaurant business to accept tips not only from the tipped employees but also as part of their job, leading to them even taking tables away from servers with the excuse of helping out the server(s) or sending the scheduled server home early so they could  pick up tables. Thanks for the help. Also I thought it was illegal to charge the servers for walk-outs -federally and state enforced thanks again. 

Unfortunately, Florida is not the best state for worker rights. I will begin with my usual caveat, I am not a lawyer. I can not and do not give legal advice. You bring up a few issues in your question, let's tackle them one at a time, shall we?

Tip Pools

It is illegal for management to take worker tips; in other words, you manager may not dip their hands into a tip pool. Managers may not receive tip outs from servers (or anyone else.) This is a federal regulation.

Taking Tables

You also ask about managers taking tables. I believe they get around this by having more than one job. If a manager sends you home and takes tables, then the manager is also performing the duties of a server. I highly doubt that the manager clocks out and clocks back in at a server's wage, and the restaurant is saving a whopping $2.13 per hour per sever by sending you home. That is not a large savings, and the only person who seems to benefit is the manager. Technically, however, I believe it is legal. The manager is not taking your tips if she tells you that is not your table.

It is unwise and unethical for management to do this. It alienates servers who will feel understandably angry and cheated. Happy employees focus on doing a good job. Unhappy employees focus on anything else, including getting a different job elsewhere. Alienated employees talk, as well. I can't imagine an unhappy server suggesting that her friends eat at her restaurant -- just the opposite is true, and unhappy employees can decrease a company's business.

The recent Starbuck's lawsuit brings up one other issue: calling an employee a supervisor does not magically change her job description. The reason that shift supervisors at Starbuck's do receive a portion of tips is that 95 percent of their job is serving customers, which is what employees are tipped for. The real test of whether an employee has a right to participate in the tip pool is her job description, not a fancy job title. This is worth mentioning; however, I have no doubt that when you say, "manager," you are referring to somebody with a managerial job description.

Walk-Outs

The Consumerist published a well-written response to the question, "Is it legal for restaurants to charge servers for walk-outs?" The rules and regulations regarding this are federal. One scenario is crystal clear, the other is a bit of a gray area.

Crystal Clear

First, if the removal of the cost of the walk-out throws the server to below minimum wage, then this seems to be a clear case of wage theft. Let's say you make $3 per hour and the minimum wage is $8. (I use round numbers for ease.) You have to make $5 per hour in tips in order to make full minimum wage. If you only make $3 each hour in tips, then you are making $6 per hour. Your employer owes you an addition $2 per hour.

Let's say you work ten hours. You make $3 per hour in wages, and $6 per hour in tips. You have made more than the minimum wage of $8; you have made $9 per hour for ten hours = $90.

One of your tables walked out of the restaurant. Their bill was $20. Your employer makes you pay, which brings you down to $70 for ten hours. This is below minimum wage, and illegal. Your employer is now guilty of wage theft.

Gray Area

In the above example, let's say the walk-out only cost you $10. You have had to pay for a walk-out, but still have $80 for ten hours, which means you made minimum wage. Is this legal?

According to the Fair Labor Standards Act, tips are the property of the employee. Outside of a valid tip pool, employers may not require employees to turn over their tips to the restaurant.

It may not be considered wage theft because tips are not wages. However, it still seems to be a violation. The problem is that it happens all of the time, and restaurant owners and managers get away with it.

It won't cost you anything to give your local Florida Department of Labor, Wage and Hour Division a call and tell them your employer is taking your tips to cover restaurant costs. If more servers stand up for their rights, perhaps we won't lose them.

Good luck, and thank you for Asking the Waitress!








Saturday, August 24, 2013

Tip Credits, Taxes and Pay Stubs, oh, my!

Ask the Waitress!
What is the actual percentage an employer can claim from my tips for my paycheck? Example: I made $43 last week, and my employer claimed $60 in my paycheck.
When I first read your question, I thought you were asking me about taxes. When I read it again carefully, it sounds like you are asking about claiming tips to the IRS, which is a different question. I am going to attempt to answer both.

Claiming Tips

This answer is short and sweet. If you made $43 in tips, you claim $43 in tips. Not $20, not $60; you claim $43. Your employer does not get to change how much you claim in tips, unless, of course, he wishes to tip you the difference between $43 and $60.

I am going to assume that your employer did not slip you an extra $17. The most likely reason he would want to claim more tips than you made is to avoid paying you his tip credit. For example, let's say you make a tipped minimum wage of $3 per hour, and let's say minimum wage is $7 per hour. If you do not make enough in tips to bring you up to minimum wage every week, then your employer owes you enough money to bring you up to minimum wage.

He may have changed your tip claim to avoid paying you. If this is the case, it qualifies as wage theft and should be reported to the Department of Labor.

Taxes

To answer this question specifically, I need more information. The Tax Policy Center explains that income tax does vary from state to state and the District of Columbia. I don't know where you are.

I am going to assume, for ease of answering, that you are paid or given a pay stub on a weekly basis. (Most establishments pay ever other week. In your question, you said "last week.")

I don't know what your hourly pay rate is; some states require that tipped employees be paid full minimum wage. The other way to say this is some states do not allow employers to take a tip credit.

Taxes are taken out of ALL of your pay; you pay income tax to the feds and to the state, depending upon where you work, on both tips and wages. Therefore, you may have weeks that you owe your employer. Instead of a paycheck and pay stub, you will receive a pay stub indicating that your taxes exceeded your hourly wage. This is much more likely, however, when you have weeks in which make a lot of money. If you made $43 in tips, then this does not add up.

Don't know if there may be an affordable tax professional in your area? You may be able to find somebody knowledgable to take a look at your pay stubs and figure out what is going on, be it legal or illegal. Even an hour's worth of her time may be worth your peace of mind.

Hope that helped.

Thanks for asking the waitress!

Wednesday, August 14, 2013

Employee or Customer Restrooms

Ask the Waitress!
Is it true that employees may not use public restrooms anymore in restaurants in Indiana? There are about 50 employees at my store & only one toilet in back for employees & its kinda gross & full of tools & cleaning supplies. Yesterday it wouldn't flush after I used it. It does not have a feminine waste receptacle either! Thank you!

Ew. My sympathies.

As always, federal and state laws may be different, but states must follow federal laws. Some states add more protections than the feds.

Federal Law

The Occupational Safety & Health Administration (OSHA) is the federal government agency that regulates your right to use a restroom while working. The Sanitation Standard states that employers must make a toilet facility available to employees. Employees must be allowed to use the toilet facility in a timely fashion. (There are some exceptions in the case of mobile work crews, but I don't that applies here.)

That doesn't give you much protections. It is saying your boss has to provide a toilet facility for you to use (and to use in a timely fashion; in other words, you can't be expected to wait an hour if you need to go.)

The American Restroom Association quotes OSHA as saying that the minimum number of water closets to employees is 3 toilets to 36-55 employees. With 50 employees in your store, it sounds like your boss needs to provide two more toilets.

To the best of my knowledge, the Sanitation Standard was written as late as 1998 and the intent was to allow employees to use the restroom to avoid medical conditions that occur when people are not able to void. This was a problem on factory floors before 1998; it may still be a problem today. I discuss that in more detail in Bathroom Breaks.

Indiana

A 2006 entry on The Labor Law Center Blog begins:
I think it is interesting to note that Indiana does not have any laws on the books specifically related lunches and breaks, except those pertaining to minors.
Doesn't sound promising; the Indiana Department of Labor may not have improved upon the federal standards.

Based upon the reading I have done so far, I think that your employer is not in violation of any law when requiring employees to use a different toilet facility; the issue here is whether or not the employee facilities are in compliance with existing law. I would look for these things:


  • Number of toilets per employees -- we already ascertained your boss may be in violation.
  • Either a toilet room with a closed door, or a different toilet room for each gender. 
  • A working toilet -- if it won't flush, it's not working, as he has to let you use the customer restrooms until it is fixed. 
  • There must be a hand washing facility for your to use, complete with soap. 

If those requirements are not met, or you feel the bathroom facility is filthy and, therefore, unusable, you may wish to contact your state's OSHA:

Indianapolis Area Office
46 East Ohio Street, Room 453
Indianapolis, Indiana 46204
(317) 226-7290
(317) 226-7292 FAX


If you are so inclined, you may ask your state's OSHA to come inspect the restaurant. I assume you can request anonymity, and employer retaliation is probably illegal.

Please remember I am not a lawyer and I don't even play one on TV. Just a stupid waitress. ;-) I am not giving you legal advice, but I am rooting and cheering for you. Laborers should be treated like human beings. Good luck, and thank you for Asking the Waitress!



Tuesday, August 6, 2013

Facebook and Federal Law: You May Be Protected

The First Amendment restricts the government's ability to stop citizen speech. We are (supposedly) free to assemble in public, free to speak, and free to make peaceful protests. Unfortunately, many Americans misinterpret "freedom of speech" to mean they can say whatever they want, whenever they want, to whomever they want. This is not the case.

Please remember that right & wrong do NOT always correlate with legal & illegal. Take the Jim Crowe laws, for example. Blacks can not eat in this restaurant? Sounds wrong to me. But at the time, it was legal because it was what the law stated.

In, "Work and Facebook Do Not Mix," I defended a private employer's right to require employees to not discuss work issues via social media outlets such as Facebook not because I think employers should rule our every waking moment, but rather, because I knew that the First Amendment does not restrict a private employer from doing so.

The National Labor Relations Board (NLRB,) bless their souls, are taking a stand on behalf of employee speech. In, "Federal Labor Law Picks Up Where The First Amendment Leaves Off," I discuss the five employees of Hispanics United of Buffalo who were fired for discussing work on Facebook. They sued and won, not because of the First Amendment, but because the National Labor Relations Act (NLRA) protects employees who wish to discuss work outside of work hours and off of work premises.

This is good news for labor advocates. However, it is not a free pass to slander your employer or your customers.

The terminated employees of Hispanics United of Buffalo prevailed because their Facebook speech served specific purposes. They were attempting to help each other defend against an accusation of laziness. They were expressing their concerns and their frustrations. They were offering each other mutual aid.

They were not slandering nor sabotaging their employer's business. They were not attempting to harass, bully, or intimidate.

The NLRB recognizes that social media is the new "water cooler" for employees. The conversation had by the five ex-employees above would have taken place at a local restaurant, bar, or park in the days before everybody jumped on the internet. The NLRB is attempting to apply old laws to new technology and new lifestyles in order to protect the long-standing rights of those of us who labor for a living.

Viva la worker! :-) 

Friday, August 2, 2013

Guest Post: Tips When Dining Abroad

Virginia Cunningham is a writer and world traveler who enjoys traveling with her family to experience different cultures, cuisine and music. Whenever she is visiting a country with which she is unfamiliar, she makes sure to brush up on that country’s etiquette.

Please enjoy her guest post: Tips When Dining Abroad. 

Tips for Dining Abroad

Getting around a foreign land can be challenging as is, and when you add dining into the mix, it can altogether be an entertaining or problematic experience. To ensure that your stay in a country is as savory as the food you’ll be eating, here are some tips to consider when dining abroad.

Don’t be afraid to tell your waiter or waitress that you don’t understand the menu. Ask him or her what they would suggest for you to try. This will ensure you get a chance to try the restaurant’s specialties and that you won’t be staring with a lost look at the menu for too long.

Perhaps you see other patrons digging into what looks to be a delectable dish – don’t be afraid to ask the waiter or the patrons themselves what they are having and that you’d like to try that dish as well.

Scout out popular eateries, dishes or holes-in-the-wall before going on your trip so that you are prepared once you reach your destination. Some sites even help you do research on a location based on specific topics such as “nightlife” and “foodies,” so that exploring what a town has to offer is easy and enjoyable. 

Learn some key words beforehand. If you’re pescatarian and refuse to eat any other type of meat, you will definitely want to learn how to say “fish” in the country’s native language. Furthermore, bring a handy dictionary along with you, either physically or via a smartphone app, so as to not stumble around for choice words when ordering.

Even if you do stumble and totally butcher the name of a meal, never fear! Most places will be understanding that you are a tourist and would be more than happy to assist you in getting you to learn more about their country and cuisine.

If all else fails and your adventurous palate has gotten the best of you, simply smile and point to what you want to try.

When traveling and eating abroad, it is also important to be wary of how your food is cooked. If it’s raw or looks undercooked at all, you may want to avoid it altogether - while the locals may have the stomach to enjoy such foods, just be aware that your body may not be as well-equipped. The same idea goes for drinking water – you may not be able to stomach tap water like the locals, so bottled water is the best option.

When going on a trip abroad, it is important to realize that there will be customs that are different from the ones you are be accustomed to, especially when it comes to table manners. For instance, the following are examples of international dining etiquette:

Japan:

During funerals, the deceased’s rice bowl is placed atop the coffin with chopsticks sticking upright in the rice – thus, never place your chopsticks upright when eating! Instead, place them flat and parallel to the table.

Middle East, India, Africa:

Eat with your right hand only, because the left hand is considered to be used only for other bodily purposes. That is, unless you are left hand dominant, in which case, don’t use your right hand for eating.

China:

Don’t flip a fish around once you’ve finished eating one side of it – it is considered bad luck. Instead, don’t eat the bottom part at all (as the most superstitious would follow) or you can pick behind the bone to get to the meat.

Chile:

It is rude to eat with your hands. Use a fork and knife instead, even when eating fries.

Moreover, while it is considered polite to finish all of the food on your plate in many Asian countries as a sign that the food was appreciated, in the Middle East, it is best if you don’t finish everything on your plate as this is a sign of the host’s abundance of goods.

Thus, it is important to research etiquette before you travel abroad. Also take cues from the locals as to what is acceptable when it comes to dining out.

If all else fails, talk to a local who is willing to teach you the ropes – you may even make a new friend!


Bon appetit!