From Wiser Waitress ...read and learn! WAGE THEFT The three most common ways a employer may illegally deduct or reduce a servers wage include: Requiring tipped employees who receive a sub minimum wage to participate in a invalid or illegal tip pool. For example, a tipped employee is forced to share tips with non-tipped workers such as dishwasher, cooks, and janitors. These workers usually are not required to report these tips but you may still end up paying income taxes. For more info search: FLSA fact sheet #15 for tipped employees. The Department of Labor just released a revised version of the Fair Labor Standards Act Fact sheet#15 for tipped employees March, 2011. Requiring server’s to pay the bill for customers who walk out,mistakes on bills, food sent back and breakages that bring the servers wage below min wage. for example, if a walkout occured and the bill was $200, the owner could not make the server pay the entire amount. Under the revised FLSA fact sheet #15, the employer may in some cases only withhold an amount that does not bring the servers wage below the federal minimum wage of $7.25. Requiring tipped employees to surrender wages/tips/earnings to the owner or a manager. Some restaurants may require contribution into a “error account”, meaning that you pay ahead of time for any mistakes you may incur and they keep these tips locked away in the office or safe. Tips are not allowed to become the property of the owner, manager. They must be shared with a tip pool not stored in a safe for future use. All of these deductions can be challenged and recovered through the Department of Labor or an attorney. In some states that have treble laws, a server may collect three times the amount in lost wages if the employer challenges the claim in magistrate court. FILING A WAGE CLAIM: *You have up to two years in most states to file a claim under the statute of limitations. Some states like New Mexico allow three years to file a claim. – This means ,if you do not want to risk losing your job by making a wage claim, you can wait until you have moved on to another job to make your claim. But you should keep good records, testimonies from other workers, a log of dates and times and any correspondence of email with your employer for when you are ready to file a claim. You can also hire an attorney who in some cases, may be able to go back six years, while the state in most cases will only award wage claims that go back two years. File with the Federal Wage and Hour if your state does not have a minimum wage law. File with the State Wage and hour if the state has equal or more powerful protections than Federal Wage and Hour. If you live in New Mexico, the only state in the nation that has a binding state law of $2.13, File with Federal Wage and Hour. Although New Mexico matches the Federal subminimum wage, it does not match the protections offered under Federal law and does not prohibit employers from requiring tipped employees from sharing tips with back of the house employees. New Mexico does not enforce FLSA Standards. FILING FOR UNEMPLOYEMENT If you file a wage claim and quit your job before you find another job, you may be able to claim unemployment insurance. To qualify for unemployment insurance you need to prove: You quit for “Good Cause”. You must prove that you tried to reconcile the situation with your boss. For example, if the employer is requiring you to contribute to an illegal tip pool as a condition for employment, You need to prove that you raised your concern over the illegal practice and your boss still refused to change the practice. Correspond through email if possible- This establishes correspondence. Although you may receive a letter of determination that your claim does not constitute good cause, do not give up. Appeal. Many state officials do not thoroughly understand the FLSA and will make a quick judgment. Its up to you to hang in there and make sure they do. Every states is different. You should contact them to find out what they consider valid reasons for quitting. And even if you do find another job while waiting on the appeal, you may still be able to collect on the weeks you certified if you win.
Posted on: Mon, 13 Oct 2014 03:38:58 +0000