My employer won't pay us minimum wage, what do I do?
September 2, 2007 10:22 AM   Subscribe

My employer (a restaurant) does not pay me or any of the other employees minimum wage. Help!

We are in San Francisco, and as far as I know California does not allow a service wage for tipped workers. Management, however, insists that since we make so much money in tips and never walk home with less than 20 an hour, they don't have to pay us minimum wage. So, instead of making San Francisco's minimum wage of 9-something, we get 6-something.
Three dollars an hour of wages really adds up in the long term and I and the rest of my coworkers are really frustrated because nobody wants to cause a fuss and get fired, but we'd also all really like to get paid what we're guaranteed by law.

Additional Info: the employees of this establishment's location in another city sued for this very reason, and won.

Ideally I'd like to just call and tip off some hotline, because none of us has the money lying around to hire a lawyer. What do I do?
posted by tumbleweedjack to Work & Money (18 answers total)
California Attorney General's Office should be able to direct you to the right sub-office. Or, this page has phone numbers for employment complaints of various kinds.
posted by LobsterMitten at 10:25 AM on September 2, 2007 [1 favorite]

Call our office. The Legal Aid Society -- Employment Law Center. (415) 864-8848. Ask for Matt Goldberg. He's our wage and hour guy. If he's not available ask for our clinic. We're free and a non-profit.
posted by ClaudiaCenter at 10:26 AM on September 2, 2007 [4 favorites]

either claudia's legal aid society, or the california labor commissioner. i've had outstanding results siccing the labor commissioner on wayward employers.
posted by bruce at 10:29 AM on September 2, 2007

Did the Feds ever do-away with the "McDonald's clause" in minimum wage law? If I recall, there was an exclusion for restaurants in the federal law that allowed them to pay below minimum wage.
posted by Thorzdad at 10:49 AM on September 2, 2007

Thanks, I'll be callling after this long weekend is over!
posted by tumbleweedjack at 10:53 AM on September 2, 2007

We are in San Francisco, and as far as I know California does not allow a service wage for tipped workers.

From here:

5. Q. I work in a restaurant as a waitperson. Can my employer use my tips as a credit toward its obligation to pay me the minimum wage?

A. No. An employer may not use an employee's tips as a credit toward its obligation to pay the minimum wage.

So now you definitely know they are breaking the law. There are links on that page that should be helpful (the first one looks like you won't be parting with any money). If I were you, my first step would be to print out that page and make sure every one of your coworkers are fully informed, before showing it to your employers. It's very clearly stated that what they are doing is illegal.
posted by saturnine at 10:53 AM on September 2, 2007

on preview: d'oh. a bit slow, but perhaps helpful anyway.
posted by saturnine at 10:54 AM on September 2, 2007

At the very least, your employer may be violating California labor code Section 351, if he's paying you less than $7.50 an hour, before tips. (see also)

I'm not familiar with the details of San Francisco's living wage ordinance, but unless it specifically says that your tips can be considered as part of your wages for this purpose (which is what the Feds say), then California law would apply -- and it says that you can't.
posted by toxic at 10:59 AM on September 2, 2007

You are claiming all your tips for tax purposes and paying the appropriate amount of tax on the tips, right?

I could see your employer turning you into the IRS for unreported income as retaliation.
posted by whoda at 10:59 AM on September 2, 2007

Not to discourage you, but what are you hoping to achieve and what are the laws relating to tips like? It's possible that if they are prosecuted that they might react by withholding tips.

If you simply want your legal rights upheld then perhaps get a letter drawn up and have all other staff members counter sign it and present it to your manager/supervisor. However if you do go through lawyers you could possibly pursue outstanding back pay as well?

In any case though I would recommend talking to a legal professional (as advised by the above posters) prior to doing anything :)
posted by chrisbucks at 11:03 AM on September 2, 2007

Also consider unintended consequences. As whoda says, they might audit the whole pay/tip/taxes process and find some additional things you'd rather not be found. Or, they might decide they can't have as many employees if they have to pay that much and let some people go.

Even if you aren't one of those let go, you're still doing more work, or working more inflexible hours, to make up for that loss. Is the more pay worth it, or are you back where you started?

Ideally, you should call ClaudiaCenter's office. Just be aware that the restaurant is probably not going to suddenly be the same thing, only with more pay.
posted by ctmf at 11:28 AM on September 2, 2007

unintended consequences to not dealing with this include shame and the continuing abuse of many other people. it only takes a few people to make a difference in a case like this (which is a good job, considering the typical spineless metafilter member).
posted by andrew cooke at 1:41 PM on September 2, 2007 [1 favorite]

Good point. Also the message to other places of business that labor rules are enforced in this city could help people you don't even know. It should be reported, and if following the law causes hardship on the management or the restaurant to fail, then that's what should happen. No free pass.

Just saying, it's probably not as simple as "ok fine. Here's more money."
posted by ctmf at 1:50 PM on September 2, 2007

I too would encourage you to fight as best you can, remembering that this is the sort of thing that there are lots of resources for in a strong labor city like SF. You will not neccesarily have to be up front or anything, or tell anyone that it was you who did the "tip off." Your employer is willfully breaking the law. It's unfair to you and to other employers.

If you don't get quick results with the folks listed above, call the Mayor's Office of Neighborhood Services. This is exactly the kind of issue they are set up to deal with. I used to work there, and while I don't know the Newsom people (and Brown was notoriously constituent service oriented), if you call, they will get you help. And it will be the right help. They're in the city pages of the phone book - if it doesn't say MONS, you can get them just by calling the number listed for "Mayor's Office."
posted by YoungAmerican at 5:49 PM on September 2, 2007

I thought it was common practice (and legal) for restaurants to pay below minimum wage to those people that receive tips.
posted by GlowWyrm at 12:42 AM on September 3, 2007

Not in California.
posted by Comrade_robot at 6:37 AM on September 3, 2007

[I don't know what the HELL an iraq derail was doing in this thread but I removed it. You know where MetaTalk is.]
posted by jessamyn (staff) at 6:37 AM on September 3, 2007

You should contact the Office of Labor Standards Enforcement. The Living wage is $9.14 per hour, this office will enforce it for anyone working in SF. 415-554-6292.
posted by LDG at 2:26 PM on September 4, 2007

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