What Legal Rights Do Restaurant Waiters Have? Here Are The Top 9

The waiting and waitress business in the United States is one of the largest workforces in the country, employing around 2.5 million people, or two per cent of the country’s workforce.

Serving hundreds of customers is a physically demanding task, which the waiters and waitresses have to do every day. They have to keep moving throughout the shift to take orders, note special restrictions, deliver foods, clean tables, etc.

Nonetheless, it is one of the lowest-paying jobs in many countries and the worst part is many restaurant owners violate federal employment laws. Unfortunately, most waiters remain silent because they are unaware of their rights as food shop workers.

LawFuel sought the advice of New York law firm Hill & Moin who specialize in personal injury law issues, including the sort of slip and fall accidents that comprise a substantial number of restaurant-linked lawsuits.  In fact, according to the National Safety Council there are some 25000- slip and fall accidents that occur in the United States every day.

For their convenience, we are pointing out some rights that a waiter should know in short. 

  1. Fair wage

The Fair Labor Standards Act (FLSA) states that all servers deserve a minimum fair wage per hour. As per this law, the sum of hourly salary and tips should not be less than $7.25 per hour. The minimum income of a bartender should be $2.25 when he collects $5 tips on average. If the employees get less compensation than this rate, the restaurant owner violates their rights. They can also complain about a payment difference between co-workers who serve for an equal period. 

  1. Overtime

The mentioned labor law also establishes an overtime wage rule for workers who invest over 40 hours a week. Not paying or underpaying for overtime tasks is illegal and can bring consequences for the restaurant. Likewise, an owner should not make waiters work overtime only for tips. Another common issue is miscalculating overtime. The law declares that the actual payment should be 1.5 times of minimum fair allowance minus the tip credit. But a few restaurants only multiply a waiter’s hourly salary by 1.5, resulting in a way less wage than he deserves. 

  1. Tipping

Sometimes, the waiters and bartenders receive double their salary or more money as tips from satisfied customers. But this rate fluctuates a lot. They might get no tips at all on certain days. The combination of these extra bucks and hourly payment must be at least equal to the federal fixed wage.

According to FLSA, a waiter can keep everything he earned above $30 in a month. This additional cash is their sole property unless they follow the tip pooling method, where tipped employees share tips with others for equal disbursement. However, the owner or manager can not claim a share because it is against the law. 

  1. Meal breaks

It is normal to get tired and feel hungry during a long shift. Numerous places have laws regarding the number of breaks a waiter can get, duration, and scheduling. As per a few state laws, when a server works for 5 hours or longer, he must get a meal break of half an hour.

If the worker has to take care of job duties while eating, it will be considered as his working hour. Also, he should be paid during additional short breaks (20 minutes or less). It might seem a small matter but disobeying this law might bring penalties for the owner. 

  1. Accidents

Almost all popular fast food chains are often unknowingly at risk for injuries such as slips, falls, burns, cuts, machinery injuries, etc. Although most incidents only cause minimal physical injuries, some can be severe.

For example, falling by slipping might cause fractures, permanent paralysis, or even death. No matter what happens, the injured waiter must inform the supervisors as soon as possible with a report form. If such injuries occur because of the owner’s negligence and the victim can prove it, the former must pay for the medical expenses. Both parties can hire attorneys to sort out the issue. 

  1. Tip pooling

Some waiters and the kitchen staff usually don’t get tips at all. On the contrary, a few waiters might receive a good amount and depend on their tips as an important supplement to their income.

Tip pooling is a useful technique to share a portion of the tips with those hardworking co-workers. However, some state laws still don’t allow kitchen chefs, cooks, and dishwashers to participate in the pool. So, it’s mandatory to check who’s eligible for the shares.

There are more rules and regulations while pooling tips. The owner must ensure all servers working on a particular day get their shares. But they can not distribute the collected tips to other employees who weren’t present on that shift. No manager or upper-class employees can participate in this system. 

  1. Business expenses

The restaurant owner must pay the workers fairly regardless of how his business is doing. He can’t deduct any amount from wages or tips for customer walkouts without paying bills or stolen items. Again, he can’t force them to pay for losses such as business failure, order mistakes, food issues, breakages, etc.

Holding servers accountable for such mistakes and demanding compensation directly or indirectly will be illegal. 

  1. Uniforms

Working in many restaurants requires special clothing of distinctive style. It’s usually the owner’s responsibility to pay for the buying expenses in the next paycheck. Moreover, he must give the servers maintenance allowances that include cleaning, drying, ironing, and expensive treatment costs.

In NY city, where our firm practices, a waiter who spends more than 30 business hours per week will get $18.65 for uniform maintenance. This law is slightly different in some cities, though. The waiters have to bear the cost only if they get at least minimum wage after deducting the uniform cost. 

  1. Lawsuit

A worker can file a complaint about any of his privileges violated by the restaurants. Of course, they have to prove the allegations in court with the help of an experienced attorney. It might cost the employer thousands of dollars or more, even for the minor ones. In general, the settlement amount equals the victim’s salary for the past two years.

The restaurant also has to bear the court expenses of the employee. Plus, waiters can sue a supervisor for workplace injuries and sexual assaults. Sexual harassment cases can snatch thousands to millions of dollars from the culprits. 

Source: Hill & Moin

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