Restaurant Nazis
March 10, 2006 7:15 PM   Subscribe

Fed up with corporate bullsh*t.

This one's going to need a bit of groundwork to lay down....

I work as a server for a nation-wide restaurant chain in California. We earn $6.75 an hour (min wage), and therefore earn nearly everything from tips. Labor laws in California restrict workers from working six hours straight without a break. Naturally, most shifts during a busy night will exceed six hours, and we can't just walk away and abandon our tables, so we have something called a "server breaker," or someone who leap-frogs from one server to the next every 30 minutes to assist their tables so everyone has a chance to take a break (there is no designated full-time server breaker at our restaurant, every server on staff has to do it every once in awhile). Instead of doling out a portion of our tips to the server breaker, they're instead placed on a $15/hr. wage (hardly comparable to the amount you'd make doing the same task as a regular server, but that's not where I'm going with this).

So now we come to certain afternoon shifts, where business is slower and only 1 or 2 servers are in danger of exceeding six hours. Consequently, they need to be broken. However, with no assigned server breaker (silly to have someone come in to work for 30 mins), the management takes it upon itself to use servers at the tail-end of their afternoon shifts to step up and break those 1 or 2 servers. The only difference, however, is that, since they're still managing their own tables in the meantime, they're still technically "servers" and therefore still earn min wage. The argument I brought forth to management is that it's ridiculous to pay someone min wage for doing a $15/hr job--on top of taking care of their own tables.

I've tried to negoatiate getting clocked in as a server breaker for that 30 mins or finding compromise by giving the temporary server breaker a free meal ticket. All of my points have been taken but given no accreditation. I'm often met with lines such as, "When you signed up to work at XXX you signed up to play by the rules and policies we have set here."

To further push the point that compromise wasn't in their best interest, there was an employee meeting where the issue was discussed...."You have two options: either we continue with our current policy or we start scheduling you guys to come in and break people for 30 mins." You can guess the overwhelming vote on that one. My response to this was why not just use servers already there and geared up at the end of their shifts? No dice.

The corporation has a 3rd-party help line that I've been directed to, and they take all the information down and pass it back to corporate. It's more often used for personnelle issues, and my policy issue reports have gone unanswered.

So my question to you all is the legaility of all this. I've tried going through the arbitration route with no luck, so I'm wondering if there exists any legal options. What are the (California) standards and labor laws regarding unequivocal wage distribution? Or maybe some resources I can be directed to to learn more about my rights and/or whether they're being infringed.

Thank you.
posted by Mach3avelli to Law & Government (30 answers total)
Do you get to share in a percentage of the tips that you "break" during the afternoon? Seems like that would be a solution that wouldn't include "management," but would make it more equitable among you workers.

I kind of hate how restaurants basically have free labor and rely on tips to pay their workers anyway.
posted by visual mechanic at 7:31 PM on March 10, 2006

Come to Australia. We pay waiters a proper hourly wage over here. The notion of tipping dosen't exist. That's why we Aussies sometimes get in trouble when we come to the States and don't tip. We just don't know to do it because it dosen't happen over here.

We also have a free national health system and a pretty decent unemployment benefits program for when you find yourself out of work. Oh, and we pay students to study too. Not much, mind you, but we do.
posted by Effigy2000 at 7:34 PM on March 10, 2006

Just saw your title. "Restaurant Nazis"? Nazis?! Maybe they're not appeasing your exquisitely refined sense of injustice enough, but I hardly think depriving you of $4.13 to which you're supposedly entitled rises to a Nazi level of depravity. Keep in mind, Your Entitledness, most of the time they're paying some schmuck $15/hr to do your job instead of making you share your tips with another server. Once in a while it doesn't make practical sense to do that, so they just ask servers to cover it. Sometimes you're the one being vaguely fucked over; sometimes you're the one benefiting from someone else having to cover your tables. Suck it up and don't be a whiner.
posted by evariste at 8:12 PM on March 10, 2006

You're making more than a buck and a half over the (federal) minimum wage we make over here on the east coast.

The argument I brought forth to management is that it's ridiculous to pay someone min wage for doing a $15/hr job--on top of taking care of their own tables.

You stated earlier than $15/hr isn't good enough for a breaker, but even though they aren't getting paid a breaker wage they're getting tips from their own tables, so it really seems like it works out better than having to just be a breaker. You just have a couple more tables you don't get tips from, big deal, at least you aren't a real breaker.
posted by soma lkzx at 8:22 PM on March 10, 2006

I used to wait tables, too, and enjoyed it immensely...and back in the mid-80s we were paid $2.01/hr plus tips. The paycheck was really not that much to get excited about -- it was ALL about the tips.

Back on topic: find something else to worry about -- I doubt that you will get the answer that you want, and I seriously doubt that there is any legal action that you can take.

posted by davidmsc at 8:31 PM on March 10, 2006

How's this -- on the East Coast, in many places, servers are paid half of the federal minimum wage as wages, since the expectation is that they will earn the other half, plus some, in tips.

Mach3avelli, get yourself some good experience and just work for a private restaurant. Poof -- no corporate bullshit. (Because it will be replaced with other bullshit.)
posted by desuetude at 8:33 PM on March 10, 2006

Here in Iowa, it's legal to pay restaurant workers half minimum wage. As long as the restaurant pays you minimum wage, tips or no, they are not breaking any laws at all, as far as I know.
posted by delmoi at 8:44 PM on March 10, 2006

I made $2.13 when I waited tables, and I counted myself lucky to get a cigarette break in a six-hour shift.
posted by evariste at 8:48 PM on March 10, 2006

Mach3avelli, it sounds to me as though a basic problem here is that you think of your job as taking care of tables, instead of taking care of customers. In most restaurants, the workloads of servers are balanced so that a server is typically taking care of from 16 to 30 guests, for typical American menus, and service, and depending on the price point of the restaurant. Your complaint seems to be only about a situation where you admit that business is decidedly slow (afternoon shifts), and so, although more tables are probably involved, the crowd densities are also proportionately lower. Thus, even if you are taking care of a few more tables for those 30 minute periods while other servers are taking their breaks, it's unlikely that on average you are taking care of many more people, and if that is true, your workload is only greater by the small amount of extra walking you do to cover the extra ground. And in a restaurant where there are free tables, the seating hostess has a lot of discretion in seating people to minimize even that. And I also agree with the math soma lkzx has done above; when you are asked to be the break relief, you are still earning above the $15/hour you'd rather not take to be assigned break relief.

Sounds to me like you have pretty thin complaint, to the point that I personally don't see that you have any basis of action. Keep agitating in the direction you are going, especially trying to get other servers dissatisfied on the topic, and management will likely remind you that you are, in fact, an employee at will.
posted by paulsc at 8:48 PM on March 10, 2006

Get over it. And I don't mean this in a snarky manner--you are obviously obsessing over this. Find something more important (and in your control) to worry about. If you keep pushing the issue, you will likely be shown the door.
posted by ajr at 8:58 PM on March 10, 2006

I don't think that Cali is an at-will state, paulsc.
posted by delmoi at 8:58 PM on March 10, 2006

I've had problems of this basic sort at every job I've ever had, so I sympathize. It's hard when you see a good way of doing things, even see beyond or around the problems in your way, but still can't convince your superiors to adopt your way.

But I have to agree with the developing opinion here: stop worrying about, stop trying to catalyse a change, and if you truly feel that your employer isn't treating you fairly, get a new job and let them abuse some other schmoe in your place.
posted by chudmonkey at 9:05 PM on March 10, 2006

You're getting minimum wage, so it's probably legal. IANAL. There's nothing stopping you from sharing your tips with the workers who cover your tables while you are on break, and trying to start a trend in your restaurant.

I disagree with Evariste. You see something as unfair, and have worked with in the system to change it. I think pulling the Nazi card is a bit much, though. The traditional route for workers to take on management is unionization. As a start, talk to your coworkers and try to come up with a fair plan.
posted by theora55 at 9:18 PM on March 10, 2006

Yeah, I don't see what the big deal is. Aren't you still making tips for that .5 hour?

And seriously, do you really think that the powers that be that own your restaurant chain are "Nazis"? Get a little perspective.
posted by bshort at 9:24 PM on March 10, 2006

nation-wide restaurant chain

Realize that the store-level management of nationwide chains have zero flexibility on HR issues such as these. While they may be smart enough to realize a good idea when they see one (and actually, only a few of them are smart enough), they are handcuffed by corporate rules ruthlessly designed to maximize customer returns and minimize costs. There's a reason Chili's makes gobs of money, and it's nothing to do with store managers experimenting on the fly.

my question ... is the legality of all this

I'm betting your employment agreement says you're an at-will employee, which means you do as your told within the law, and these breaker positions are designed to perfectly comply with the letter of the law.

get yourself some good experience and just work for a private restaurant. Poof -- no corporate bullshit.

Not only is this a good idea to rid yourself of the corporate bullshit, I bet you'll find much more fulfilling work in general at a private place.

Restaurant Nazis

On second though, scratch the private restaurant idea, save your pennies, and see if you can buy yourself a fucking clue. Your lucky to have "server breakers" in the first place -- the concept was probably invented to get the whiners to shut the hell up. And the rule is that unless you're literally talking about WWII, the first person that uses the word "nazi" in an argument automatically loses the argument.
posted by frogan at 9:39 PM on March 10, 2006

Jesus, people, bad Friday night? Among other things... for better or worse, the term "X Nazi" as a hyperbolic but essentially benign pejorative is in the culture - think Seinfeld's "Soup Nazi." Lighten the fuck up.

But Mach3avelli, you don't have any legal foundation that I can see at all. As a wage employee you have the right to earn minimum wage, to be clocked in as long as you are working, and to get paid overtime if you work it. Within that framework you can do what they tell you or you can quit. There is no legal basis for the idea you have that there is a right to the consistent application of differentials or bonuses. As long as they're paying minimum wage and correctly applying the overtime standards for non-exempt employees they can set up their wage structures anyway they please. Is it "fair?" Maybe not, but there's no legal right to that sort of fairness in the workplace. I have to agree with ajr - you've done all you can as an employee to register and advocate your opinion. Drop it or get a different job.
posted by nanojath at 10:13 PM on March 10, 2006

Response by poster: Please keep judging my character as if you have all the facts and know me personally.

"Restaurant Nazis" is hyperbole, not meant to be taken seriously. I probably shouldn't have included it as I see it detracts from my purpose. Just ignore it, please.

I'll keep this simple and ask again....

So my question to you all is the legaility of all this. I've tried going through the arbitration route with no luck, so I'm wondering if there exists any legal options. What are the (California) standards and labor laws regarding unequivocal wage distribution? Or maybe some resources I can be directed to to learn more about my rights and/or whether they're being infringed.
posted by Mach3avelli at 10:19 PM on March 10, 2006

Response by poster: Thank you, nanojath.
posted by Mach3avelli at 10:21 PM on March 10, 2006

Oh, meta for what it's worth.
posted by delmoi at 10:24 PM on March 10, 2006

It seems to me that as you're working at a nation-wide chain, this rule probably exists at all of the establishments.
posted by k8t at 12:18 AM on March 11, 2006

After a lot of thought, I don't think I can be sympathetic. I don't know what is legal there or not legal, but if you actually look at the math of this, they could just pay breakers that same $6 an hour for their breaks and everyone would be getting, on average assuming the breakers shifts are rotated, exactly what they would have made if there were no breaks (but those half-hours were worked).

When someone works as a breaker, they're not making as much because they're not getting tip income. But they're doing a certain amount of work, and that amount of work is worth a certain amount of money, and that amount of money goes to the person on break even though they did no work. It's a good deal for the people on break. It's a bad deal for the breaker. Both by exactly the same amount. So, again, assuming the breaker shifts are equally distributed, everyone makes the same amount of money on average than they would have otherwise.

But you say that since they're paying breakers $15 an hour instead of $6, then that half-hour of work, tips aside, is worth $15 an hour and not $6. But what makes that half-hour work any different than any other half hour of waiting tables? It's the same amount of work for the same amount of time. That's what the last two paragraphs demonstrate. So why in the world are they paying breakers $15 an hour when it's a half-hour of a waitperson's work that is otherwise always paid at $6?

The answer is that it's hard to get people to come in and do it for less. Certainly it's hard to do with for the same hourly as when they're making tips. This is because people think they're making less money without those tips, even though when the shoe is on the other foot, they're making extra (or, not extra, but a half-hour's wages for zero work). People don't see how they are benefitting exactly as much as their losing. They only see that $6 an hour with no tips.

In a perverse way, this does mean that that half-hour of labor really is somehow worth more than others. The ways in which they are different are the ways in which people are more reluctant to do that half-hour of work, and so they have to pay more. Additionally, aside from the illusion of getting screwed when the work as breakers, there's also the probability that breaker shifts are not that long and so not are less worth the trouble of going to work and coming home.

This company has looked at the situation and decided that paying someone an extra $9 will ensure that those half-hours are "manned".

Now look at the situation you're complaing about. Is it the same, or is it different? Well, it's not as much different. For one thing, you're already there at work. Someone is a lot more willing to have an extra half-hour of work to do after four hours than if they came in to work for only a half-hour. So in that sense, that half-hour isn't worth $15 to the afternoon server while , in contrast, it is to someone coming in only for that half-hour.

However, there's still that pesky illusion of making less money. As long as people have the sense that they're making less money, even if they're not, then they'll want that half-hour compensated in a way that makes them feel like it's "fair". It doesn't matter if it's fully informed or rational—the bottom line here is getting someone to do that particular half-hour's work. Whatever it takes is in a sense what it's worth. There is a difference between the specific breaker shifts and tacking on that half-hour in the direction of people being more willing to do it was part of their larger tipping shifts. So the extra amount that half-hour is worth is less than $15. But it still fells like it an unfair deal, so it must be worth more than $6.

In any event, looking at it differently and assuming that that half-hour of work is exactly like every other half-hour, then if you're demanding what is "fair", you arguably are asking all breakers to be paid only $6! On the other hand, assuming that half-hour is somehow different, the question is how much different. People will come in for $15, so we know it possibly could be as much as $15.

Seems to me, anyway, that a half-hour of doing breaker work in addition to handling your own (slow!) tables is a bit less desirable than any other half-hour. But it's not hugely different—it's not comparable to someone coming in especially to work for 30 minutes. Or an hour. Or two, even. It'd be awkward to track that half-hour at a different rate. And since I feel like the premium to work that half-hour is not that large but not zero—in fact I think it's about 2-4 dollars—comping a meal as you suggested would settle things just right.
posted by Ethereal Bligh at 12:25 AM on March 11, 2006

my policy issue reports have gone unanswered.

So my question to you all is the legaility of all this

You seem to have found a genuine inefficiency here and you're right to make a mini-crusade out of it.

But bear in mind that there's a productive way to do it and an unproductive way to do it. Corporations are slow to move. Everyone's afraid to act outside of a policy, and corporate folks have full-time worries that may keep them from giving this issue full attention quickly. Frankly, there probably are more important things to worry about.

But stay on it. If you're patient, articulate, polite, and persistent, you can get a corporation to take a look at a genuine inefficiency and fix it. Don't toss up your hands after a few attempts and start trying to call in the lawyers. Keep writing letters. Keep asking your boss if s/he has followed up on your complaint with corporate. Actually, don't even call it a complaint. Call it a suggestion or a question or something that makes you seem less confrontational and less of a rabble-rouser.

If your employer has had to remind you that you are subject to company policy, then I'm guessing you may have rocked the boat already. You probably don't want to put your job at risk over this, do you? So undertake it as a campaign, start thinking of yourself as an activist, and learn to beat the corporate types at their own game. You can't just cry "injustice!" from the rooftops and then give up when corporate doesn't swoop in and fix everything. You need to penetrate their bureaucracy, work to get this on their radar, follow up, force it onto some agenda at some meeting somewhere miles from you.

That's not easy to do, but like a lot of consumer and labor advocacy, it's about pursuing your claim persistently over the long haul, and doing so in a professional and fair way which can't be ignored forever.

You won't get anywhere by just rattling the cage.
posted by scarabic at 1:20 AM on March 11, 2006

labor laws regarding unequivocal wage distribution?

Incidentally, it might just have been a brain fart, but "unequivocal" does not mean "uneven" or "unjust." It means "clear and without double meaning."

To equivocate is to engage in doublespeak. "I did not have sexual relations with that woman" was equivocation. By one definition of "relations" it was true. By another, totally untrue. Doublespeak. An equivocal statement.
posted by scarabic at 1:27 AM on March 11, 2006

Response by poster: Thanks guys, I'm learning a lot.
posted by Mach3avelli at 4:08 AM on March 11, 2006

Slight derail:

delmoi, it is true, as you imply, that in the 1980's, most states, including California, allowed certain exceptions to an absolute doctrine of employment at will, as basis for wrongful discharge actions against employers. Only 5 states (Louisiana, Florida, Georgia, Mississippi, and Delaware) are still completely "at will" jurisdictions. But, as I understand it, the underlying law in most states, with the possible exception of Montana, is still the concept of employment at will, and the burden of proof that an exception violation has occurred is still on the discharged employee, even in most states permitting exception actions.

So, unless there is clearly an exception issue so egregious as to be quite likely to prevail through trial and appeal, against a chain operation with pretty deep pockets, few labor attorneys will take a simple "wrongful" discharge case. Net result is that, in the main, "employment at will" is still the operational approach of many businesses of national scale, who feel that their legal retainers are likely to be a good deterrent to all but the most serious of actions that might come up in employee discharge.

IANAL. YMMV. (/derail).
posted by paulsc at 5:20 AM on March 11, 2006

Mod note: a few comments removed. take all Nazi discussion to the metatalk thread.
posted by jessamyn (staff) at 7:24 AM on March 11, 2006

I have no idea about California labor laws. But there is nothing about this that seems illegal to me. You're being paid a living wage for that extra half-hour. And while yes, if a real breaker were there, he'd made about twice as much for that same half-hour, that's just not feasible. And the two shifts/job descriptions are completely different. Ideal? No, but I don't think it's illegal.

As a side note, I've actually never known a restaurant that actually follows labor laws so closely! I've worked in several serving situations and it just never made sense logically to get the same kind of breaks I got in other blue collar jobs (for instance, when I worked in Maine at a warehouse we got 30min paid and 30min unpaid breaks for every 8 hours of paid work, by law. At a restaurant in the same state, we just took our breaks when we could...which usually happened but sometimes didn't). And $6.75! Wow, that's twice as much as my biggest serving wage. That actually seems like a lot for regular non-tipping minimum wage (which is ridiculous but true).
posted by lampoil at 10:29 AM on March 11, 2006

Take a look at this. The waitress is paid $2.13 an hour here in Galveston, and she asks: Where is “the waitress district” with a board we can ask for raises?
posted by Robert Angelo at 3:31 PM on March 11, 2006

"You're being paid a living wage for that extra half-hour."

...but not tips. However, when someone works as a breaker for you, you're getting that half-hour's pay including tips like any other half-hour...except that you're not doing anything.

You can't just look at how much you're not getting when you're a breaker without looking at how much you're getting that you wouldn't when someone works as a breaker for you. In theory, they're the same amounts.
posted by Ethereal Bligh at 3:55 PM on March 11, 2006

As a bartender in Alabama making less than minimum wage, I often work 12-hour days without a scheduled break. I can't sit and eat on the clock, I can't leave the bar unattended, and I frequently work from open until close without ever sitting down.

So, I gotta say, my heart is pumpin' piss for yah.

The very fact that the restaurant even has positions like "server breakers" is foreign to me. I can't imagine them bothering to do such a thing here.

Here's what happens in my restaurant:

"I'm going to smoke. Watch my tables, OK?"


Problem solved.

When I want a break, I'll tell a manager I'm leaving for half-an-hour, they'll roll their eyes and bitch about it, and I'll ignore them on my way out the back door, making sure I'm waaaaaay off the premises so they can't come find me when Table 17 orders a round of Old Fashioneds and no one knows how to make them.

IMHO, you've got it pretty good. If there are inefficiencies in the system that you think corporate needs to address, keep up the campaign and be polite, and show them how it will make your store more money. All they want to do is maximize profits by minimizing labor cost while remaining within the letter of the law, so it's going to be an uphill struggle.

I second the motion that you go get a job at a privately-owned place. Better work conditions, better money, and less hassles, in general.
posted by BitterOldPunk at 11:44 PM on March 11, 2006

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