Wage theft, unfortunately, is common throughout the country. Sometimes it takes place by mistake, but most of the time it is deliberate.
Fortunately, most waitresses are covered by wage and hour laws which are are laws which determine how much a waitress should be paid and how many hours each day an employer can expect his waitresses to work.
The commonest wages and hours laws which are often violated and amount to wage theft are minimum wages and overtime pay. Meal break laws also fall into this category as well.
Waitress May Experience Wage Theft
California is one state where paying a waitress less than the minimum wage set by the state violates California’s minimum wage law.
An employer is not allowed to use tips earned by a waitress to go towards the amount of the minimum wage. Otherwise this constitutes wage theft and can attract serious penalties if a complaint is filed.
Examples of How Wage Theft May Occur for a Waitress
Some of the other examples of wage theft from a waitress are:
- stealing tips,
- failing to provide paid meal breaks,
- not paying for all the time on the job, such as setting up tables;
- not being paid to count money at the end of the day;
- cleaning tables after the restaurant has closed;
- employer failing to pay the correct vacation pay;
- employer refusing to pay you;
- not paying for tasks completed by the waitress after hours at overtime rates.
If an employer has failed in his/her duty to pay the correct amount of money, including failing to pay for time the waitress spends doing other jobs even if his/her day is officially finished, then the victim can file an unpaid wages claim.
What to Do If Experiencing Wage Theft as a Waitress
If you have discovered that while working as a waitress your employer has asked you to hand over your tips or come in early to prepare the tables for customers and she or he hasn’t offered either the normal minimum wage or applicable overtime rates if you have already worked the maximum number of hours for the week this is wage theft.
You know this is not right but the first thing you need to do is to ask your employer about this violation of wage and hour law. If after some time has passed you have had no response, you should think seriously about filing a wage claim with the Labor Commissioner’s office in your area.
Of course you will need evidence to back up your wage claim. This could include any of the following:
- your signing in and out time;
- your pay slip showing your hours, some of which should have been paid as overtime;
- your pay slip showing hours that haven’t been paid for due to tips you received;
- eye witness reports stating your start and finish times;
- pay slip showing too little paid leave.
Next Steps for Filing a Wage Theft Claim
To file a complaint for wages theft under the Fair Labor Standards Act (FLSA) there are several different methods under the FLSA you can take as a waitress to recover wage theft.
The sensible step to take first is to bring the matter up with your employer. If s/he fails to respond you can then file a complaint. The Secretary of Labor might decide to file a lawsuit to recover wages theft and impose a penalty on your employer, called liquidated damages.
If your employer has willfully violated the FLSA, a calculation made could end up with you receiving double what is owed in the wage theft.
You can also file a complaint with the WHD which may pursue a lawsuit on your behalf. However, if the WHD has already organized the payment of the wage theft you are not entitled to file a lawsuit.
In most cases you are given 2 years except when an employer has willfully violated the Wages and Hour law and the statute of limitations is then three years.
Contact an Employment Law Attorney to Help With Your Claim
As a waitress it is always a good idea to talk to an employment law lawyer before pursuing an unpaid wage claim against your employer. An employment law lawyer may be able to help you gather the evidence to prove your claim.
The lawyer knows the best way of approaching often sensitive situations like this. As a victim you can’t be sure that your employer might have just made a mistake.
An experienced employment lawyer will know precisely what to do and will ensure you get the compensation you deserve from an employer has deliberately violated wage and hour law.
Additional Resources
