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Can I be terminated for asking for back pay and overtime? Georgia

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  • Can I be terminated for asking for back pay and overtime? Georgia

    I was hired at a restaurant outside of Atlanta,GA on February 9th of this year. A few weeks later I was promoted to head server- the promotion included 100$ a week on top of my current hourly wage (I was never salaried). Recently I was fired for being charged with a DUI under the claim it would set a bad example- even though the bar manager has 2 convictions for DWI and the head server at their other restaurant has been convicted of one as well. I was able to convince her to demote me rather than fire me. However, in the ten weeks I held that position I only recieved 400$- and am still owed 600$ plus I was never paid overtime. Would my job be in jeopardy if I ask for the remaining 600$ and overtime?

  • #2
    Your job is in jeopardy now.

    Legally, you cannot be fired for reporting an alleged violation of law (which is what the failure to pay overtime pay when due would be) to the applicable regulatory authority (in this case, the federal Dept. of Labor). The DOL, however, does not care about the extra $100 per week, because that is over and above minimum wage.

    You've already given the employer ammunition for a legal termination. At this point, if I were you, I'd keep my mouth shut and look for another job. When you find one and resign, at that point, you can file the claim for unpaid overtime. Going to the employer, or even filing the claim, at this point would provide give the employer the argument of "we didn't fire Mary because she filed a wage claim, we fired Mary because she had a charge of DUI" and such a reason would NOT be illegal (although you MIGHT still get unemployment benefits).
    Last edited by Pattymd; 06-01-2010, 11:04 AM.
    I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

    Comment


    • #3
      Thank you for your help. I was wondering then if the 600$ isn't considered for DOL- would there any means for me receive that? Or can I consider it gone? I know the other head server and bar manager never received their "raise" as well. Also- there is a situation with credit card tips. If the business owes us credit card tips we dont get them sometimes til the end of the month after we have to basically beg for them. One employee has a few dating back to April. As a result many of us haven't been able to pay bills, rent etc.. Sadly, I have been looking for new employment but the openings are scarce at the time and I need this job until Im able to find a new one. Its just this paying thing is getting out of hand- dont always get checks, kitchen staff checks bounce regularly and most servers have never gotten one. I have to believe there is something we can do without termination but I guess we have to deal with it til new jobs open up.
      Thanks again for your help!

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      • #4
        The DOL is concerned that you received minimum wage, which you did. So they arent interested in that. If others got an additional wage and you didnt and can show it was due to your race, gender, national origin, religion or one of the protected characteristics, then you are into illegal territory.
        Nothing in the law requires that you get the extra money even if it was promised to you and paid to others, unless you have a contract saying you would be entitled to that money.
        Sorry.
        I find that the harder I work, the more luck I seem to have.
        Thomas Jefferson

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        • #5
          I think that if I were charged with a DUI, I'd be much more concerned with that than worried about a measily $600 and some tips!

          This is a huge thing that will haunt you forever, costing you a lot of money in the long run, not to mention your reputation, your ability to get around, your background checks for the rest of your life, etc. And you're concerned with $600 and tips? I just don't understand the priorities here...

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          • #6
            My priorities are of no concern to you or anyone else. I am concerned with the other issues in my life but I also have to earn a living. Not being paid overtime, employees never receiving a check, paychecks constantly bouncing, not receiving credit card tips until weeks on end- the dollar amounts may not mean much to some people but they mean a great deal to the people that rely on them. It doesn't matter if its 600$ or $6000- in the restaurant business, especially during slow times, every penny counts. I understand that I have no claim to that money- but I do know I have claim to my overtime. Judging me is not the intent for this site- it is for people who have legitimate legal questions. If I wanted your opinion on a DUI charge I would've asked for that specifically.

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            • #7
              I gave you the legal answer and I also gave you some suggestions re: timing. You didn't mention the cashing out of credit card tips "for weeks" or bouncing paychecks in your original post.

              However, when you come to a free bulletin board, you don't get to choose who responds or how they respond. You have a DUI charge pending; you're lucky you still HAVE a job.
              I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

              Comment


              • #8
                Wow, things sure can escalate quickly on free bulletin boards. In an attempt at injecting a differing viewpoint in order to refocus the discussion on the employment law topics at issue, or if nothing else to redirect the ire of the responsive posters on one of their own rather than the original poster, I offer the following (as always, not to be construed as legal advice):

                First, the original post presents this situation: restaurant server, supposed to be paid unknown hourly wage (with $100/week raise), not paid overtime, not paid all hourly wages owed (apparently 6 weeks of this $100/week raise), fired for DUI but changed to demotion. What we don't know still is whether your hourly wage (even with the $100/week raise) was less than $7.25/hour (if so, was the difference to be made up by tips?), and whether you have been paid the full minimum wage for all hours worked or not. Without knowing (i) whether your hourly wage was for less than the minimum wage, and (ii) whether the amounts you say you haven't received were for minimum wages or for some extra amounts, it's too early to say that "the DOL doesn't care about the $100/week because it is above minimum wage," or that "[t]he DOL is concerned that you received minimum wage, which you did," because we don't yet know whether you received minimum wage or not. Your post doesn't clearly state what your hourly rate of pay was before and after the $100/week raise. Also, if your pay arrangement was for less than minimum wage and the difference was supposed to be made up by the "tip credit," you may have additional issues under the minimum wage laws. In general, this board is a good resource for answering the threshold question of whether your employment issues are worth discussing with an overtime lawyer or the DOL -- and I think (or at least I hope) the responsive posters would agree that the answer on that is probably yes under the skeletal facts presented.

                Regardless, you say you were not paid your overtime and ask whether you should complain about it to your employer. You were fired for getting arrested for a DUI, and the employer rescinded the discharge and demoted you. Thus, the employer appears to have made a final decision on the disciplinary action taken for that arrest -- demotion. If you now complain about unpaid overtime, I respectfully disagree with those that believe you have now given the employer more of a reason to fire you -- I believe a reasonable argument can be made that the opposite is true. If you complain about unpaid overtime, and the employer fires you (claiming that it was due to the prior DUI arrest rather than for complaining about unpaid overtime), then as a Georgia employee you may have a claim that your discharge was in retaliation for asserting your overtime rights under the FLSA. That said, there is no requirement under the federal overtime law that you complain to your employer about not getting paid for overtime hours that your employer knew you worked without receiving overtime pay before you file a DOL claim or an overtime lawsuit. Again, for detailed advice on anti-retaliation protections talk to an attorney or the DOL.

                Finally, your second post said your credit card tips have been delayed for months (potential minimum wage issue if your hourly rate was less than $7.25 with the difference to be made up by the "tip credit"), and that other servers have never even received a check at all (potential minimum wage issue, and one that sounds like it might be more efficiently handled as a collective action). Same recommendation.

                When in doubt, contact the DOL or an attorney (this board does not give specific attorney referrals, and generally directs posters to the NELA attorney directory at www.nela.org), and above all else, don't take anything said in these responses personally. You may have been underpaid by your employer, but rest assured, you have not overpaid for the responses you get (this one included) on a free message board.
                Last edited by C.A.H.; 06-02-2010, 10:05 AM.
                C. Andrew Head, Attorney, Crowley Clarida & Head LLP http://overtimeattorneygeorgia.com/. Licensed to practice in Georgia. The foregoing does not constitute legal advice and should not be construed as establishing or attempting to establish any attorney-client relationship.

                Comment


                • #9
                  Originally posted by C.A.H. View Post
                  Finally, your second post said your credit card tips have been delayed for months (potential minimum wage issue if your hourly rate was less than $7.25 with the difference to be made up by the "tip credit"), and that other servers have never even received a check at all (potential minimum wage issue, and one that sounds like it might be more efficiently handled as a collective action). Same recommendation.

                  When in doubt, contact the DOL or an attorney (this board does not give specific attorney referrals, and generally directs posters to the NELA attorney directory at www.nela.org), and above all else, don't take anything said in these responses personally. You may have been underpaid by your employer, but rest assured, you have not overpaid for the responses you get (this one included) on a free message board.
                  She stated another employee had tips going back to April, not her.

                  Being able to file suit for retaliatory discharge still leaves her without a job. So while she would have a lawsuit, she would also have to find a new position with a recent DUI on her record. She states jobs are scarce in her area so this does not seem like the best idea.

                  Which was why Patty suggested in her post to find another position and then file.

                  Comment


                  • #10
                    Success!

                    You are absolutely right, she only said that payment of her credit card tips was delayed "until the end of the month" or "for weeks on end," and that it was another server who has some unpaid tips dating back to April. Of course, if the purpose of this discussion is to help answer her questions, this begs the question: does it make a difference under the law that tips (which, under the FLSA, belong to the employee, and which may or may not be part of her minimum wage) were withheld only for weeks on end as opposed to months on end?

                    As for whether or not to assert her protected FLSA rights to her employer while employed there, I never said it wasn't a judgment call requiring a cost/benefit analysis and a weighing of potential outcomes. The response below assumes that there will necessarily be only result: she will lose her job. If so, she would have a claim for back pay plus an equivalent amount as liquidated damages. For all we know however, based on the information provided, there might be another result that is just as likely: she gets paid the wages now, when (according to her post) she really needs them, and she doesn't get fired for asking.

                    In fact, if you look at my response, I only recommended that she talk to the DOL or an attorney. I didn't advise her to complain immediately, nor did I advise her to hold off on doing so. I didn't even disagree with PattyMD's advice that she hold off on doing so. I only respectfully disagreed with PattyMD's stated reasoning, which was that "Going to the employer, or even filing the claim, at this point would provide give the employer the argument of "we didn't fire Mary because she filed a wage claim, we fired Mary because she had a charge of DUI" and such a reason would NOT be illegal (although you MIGHT still get unemployment benefits)." I say respectfully disagreed, because PattyMD is one of the most dependable and prolific posters on this board and anyone would have to respect her advice and her herculean efforts at helping those who have questions, and because reasonable minds can disagree on whether asserting her overtime demand at this time would give her employer a better argument in justification for firing her at this time.
                    C. Andrew Head, Attorney, Crowley Clarida & Head LLP http://overtimeattorneygeorgia.com/. Licensed to practice in Georgia. The foregoing does not constitute legal advice and should not be construed as establishing or attempting to establish any attorney-client relationship.

                    Comment


                    • #11
                      Thank you for all the advice- and you are correct I did omit some details. As a server we are paid 2.13$ per hour and I personally average 35-40 hours per week. Tips are uncertain because they are based on the volume of business. Recently (last 2 months) volume has been down. Last week for example I averaged 40-50$ per night. The 100$ extra was to be paid each week. And no we did not have a contract- but she did mention these "bonuses" to my leasing agent when I leased a new apartment. A few co-workers do have credit card tips that date back to April- the latest for mine is May 7th. Its a difficult situation at work because we basically have to beg to get our tips- which is the primary source of our income. I'm one of the lucky few on staff who does receive a pay check every other week- but overtime was paid at the 2.13$ p/hr. Current employees want to contact the DOL but don't want to do so until they find a new job for fear they will be terminated. Again thank you for your help in this matter- the advice is priceless that has been provided.

                      Comment


                      • #12
                        Print out the following factsheet and maybe bookmark it. This is the federal DOL factsheet on tipped employment and anyone in the country who works tipped employment needs to be VERY familiar with every thing in the factsheet.

                        http://www.dol.gov/whd/regs/compliance/whdfs15.htm

                        More specifically:
                        - For each workweek, the employer must pay you at least $2.13/hr directly. If your tips do not equal at least $5.12/hr (the different between federal minimum wage of $7.25/hr and the federal sub minimum wage for tipped employment of $2.13/hr), then the employer must make up the difference.
                        - Overtime is based on at least 150% of $7.25/hr (could be higher if tips are higher), not 150% of $2.13/hr.
                        - GA DOL is more or less worthless. Plus GA has some strange tip rules that I am not familiar with. HOWEVER federal law is good everywhere, so the factsheet I cited is valid. You can file a federal wage claim with federal DOL. You can file a small claims court action. You can talk to a lawyer. The more people with the same problem and a willingness to do something about, the better talking to a lawyer looks.

                        You still need to read the entire factsheet.
                        "Reality is that which, when you stop believing in it, doesn't go away".
                        Philip K. **** (1928-1982)

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