Chat Live
If you’ve ever worked as a server at a restaurant, then you know what a slow shift is like. After eight hours on the floor, you only help a handful of tables, and some are inevitably bad tippers. Your base hourly wage probably doesn’t exceed $2.13, and so you end up receiving compensation below the federal minimum wage of $7.25.
- Employees should report all infractions of the FLSA to the Department of Labor.
- Restaurants risk paying heavy fines for FLSA violations.
- Experts advise hiring a lawyer to ensure compliance with labor laws.
Fortunately, there are protections out there to ensure that restaurant workers get their fair cut. Specifically, the Federal Labor Standards Act (FLSA) provides workers with a slew of rights and helps govern the relationship between employee and employer. One particular protection that the FLSA provides that applies to tipped employees, including servers and bartenders, mandates employers to make up the difference in pay should employee hourly wages with tips drop below the federal minimum wage.
“The FLSA exists to set standards in the workplace that relate to such things as minimum wage, overtime and child labor laws,” says Leonard Emma, an attorney at the Law Offices of Randall Crane in Oakland, Calif. “States may have laws that are stricter than what the FLSA provides, but it establishes the basic threshold for workers’ rights.”
Would You Like a Lawsuit with That?
Violations of the FLSA are rampant in the restaurant industry. Part of this is because many restaurant owners, especially those that run smaller operations independently, are unaware of all the nuances of the complex and sweeping legislation.
For instance, in October, a small restaurant chain with locations in Missouri, Georgia and West Virginia is being forced by the U.S. Department of Labor to pay up more than $100,000 for violations of the FLSA’s child-labor and wage-and-hour provisions. The latter violations pertain to compensating restaurant employees below the minimum wage and failing to pay overtime for workers that put in more than 40 hours a week.
“The FLSA defines who is an exempt employee and who is non-exempt employee,” Emma says. “Exempt employees do not receive overtime and must be paid a salary that is a minimum amount above the minimum wage, and they must also perform a specific category of work. Non-exempt employees, such as restaurant servers, are paid hourly and do receive overtime.”
A 2000 study conducted by the Department of Labor’s Wage and Hour Division highlights just how prevalent of a problem FLSA violations are within the restaurant industry:
- Within full-service restaurants, 47 percent of workers aged 14 and 15 were employed in violation of the FLSA’s youth-employment requirements.
- Within the fast-food industry, 29 percent of workers aged 14 and 15 were employed in violation of the FLSA’s youth-employment requirements.
- The vast majority of these infractions (87 percent) involved violations of the FLSA’s Reg 3 provision, which specifies the time of day and number of hours that 14- and 15-year-olds can work during school and non-school weeks.
Education and Audits Are Key to Compliance
It’s crucial for restaurant employees, managers and owners to understand their rights and obligations under the FLSA. Employees may be entitled to civil damages, while restaurateurs can easily be put out of business by the thousands of dollars in fines that accrue for violations of the law.
To ensure compliance with the FLSA or assert your rights under it, you should be aware of some of the common violations found in the restaurant industry, which include:
- Taking a “house cut” of workers’ tips
- Permitting or requiring workers aged 14 and 15 to work more than three hours on a school day, eight hours on a non-school day or 40 hours in a non-school week
- Employers failing to properly compensate employees who work more than 40 hours a week
- Calculating overtime incorrectly
- Failing to incorporate cost of meals into wage calculus for overtime purposes when required
If you are a restaurant employee and you feel your FLSA rights are being violated, you should contact the Department of Labor. However, because of the complex process, you may want to consider hiring a knowledgeable labor attorney to assist you.
“An attorney practicing employment law can walk you through the procedures and red tape more effectively,” says John Mahoney, chair of the Labor and Employment Practice Group at Tully Rinckey. “In addition, should the violation be severe, you and your attorney can discuss the possibility of a lawsuit.”
As for restaurant managers and owners, Mahoney says that the Department of Labor provides employers with several tools to aid in compliance including guides and posters as well as staff on hand to field phone calls from inquiring employers. He also iterates the importance of educating your team.
“The best thing owners can do is to make sure that management and staff know the applicable law,” Mahoney says. “This is achieved by posting the law within the restaurant, conducting regular trainings, performing regular compliance audits and having a trusted legal advisor on call that is able to answer specific questions.”
If a restaurant owner believes he may be in violation of the FLSA, Mahoney recommends he contact an employment law attorney immediately.
“The civil penalties for violations of the FLSA are steep and come with the added threat of jail time,” he says. “You business and even your liberty could be at stake. An attorney can walk you through compliance actions and advocate on your behalf if the Department of Labor seeks to take its own reparative measures.”
