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break time in restaurant business California

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  • break time in restaurant business California

    I work as a server and i regularly have what's called "breaks" at my job... but i'm not sure if how they have us take our braks is right or not.

    basic rundown:

    you're told to take your break, so you go clock off. the next 30 minutes of my day is spent eating my food or whatever, and every 3-4 minutes i'll get up to see if my tables need anything. keep in mind we're supposed to clock off the second they tell us to take our break, so if we have tables that's our problem apparently.

    now there is an option of transferring these tables to another server, but neither I nor any other employee does that, becuase well, we worked for our tips and we would like to keep them. Here's the problem, if i dont' transfer my tables, and i take my "break" is it legally a break, because i was under the impression that a break must be uninterrupted.

    edit: another side question:
    Is my employer (manager) allowed to force me to do my cash-out (all the paperwork at the end of my server shift, regarding tips, sales, etc.) off the clock?

    side question: i asked my employer for a copy of my hrs worked (i wanted copies of time cards to have more detail as to days hrs worked since i started, about 1.5 years back) I instead recieved a printout from what looks like the payroll department which shows the gross pay per pay period from when i started, now i can estimate hours worked per week by doing some math, but the problem of tips comes to mind becuase the gross pay includes tips which would throw the hourly off completely... is my employer required to keep a copy of my actual time cards or somethign a little more detailed than this report given to me? and if so are they required to present them to me if i request it?

    Junior Member
    Last edited by amikhchi; 11-14-2006, 02:21 AM.

  • #2
    Here's the problem I see with the meal break situation. Although you are provided with the required 30-minute meal period, you are getting up to check on your tables during that time because you don't want to give up your tips. That's YOUR choice.

    And although you must be paid for all time worked, and a break where you are getting up to work every few minutes is not a bona fide meal period, your employer could also discipline you for not taking the required meal break. That's why you are required to clock out---so you're NOT working. And if I were your employer, I would do so, no questions asked. Don't servers "spell" each other? So, you go to lunch and someone else covers your tables; then that person goes to lunch and covers yours. The employer is the one who is gets in trouble should you file a claim for unpaid wages.

    Regarding your paperwork and side work, this IS work time and you must be compensated for it. You can file a claim with the Division of Labor Standards Enforcement for unpaid wages.

    Regarding your time cards, the paystub must show, by law, the number of hours worked each pay period. My understanding from a California employment law attorney is that you must be given copies of your time cards if you request them. In the future, why don't you just make a copy of the time card before you turn it in, or write down your hours separately and keep them yourself? You can also file a complaint with the DLSE regarding the missing information on the paystub (if, indeed, your hours worked are not there).
    I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.


    • #3
      I waited tables for years, and these practices are common, and illegal. The restaurant should force you to transfer your tables when you go on break (which is legal, even though I know it makes you lose money). Since they don't, they need to pay you for the break. Likewise, cashing out is work, and needs to be on the clock. I would file a claim with the DLSE once you no longer work there. While you might be losing part of your claim due to the statute of limitations by waiting, in my experience, it is far to easy for restaurants to retaliate by taking away all of your good shifts or stations, but it impossible to prove that is retaliation to a jury that doesn't understand why Friday night and Friday morning are two very different shifts.
      Megan E. Ross, Esq.
      Law Offices of Michael Tracy

      Disclaimer: The above response is a general statement of the law and should not be relied upon as legal advice. It only assumes the facts that are stated in the message. The above response does not serve to form an attorney-client relationship.


      • #4
        thanks for the quick responses

        about the breaks, i know it's technically our choice to not transfer the tables over to another server, but i even asked to do that once, and i was given a smart-*** remark by my manager like i shouldn't even dream of it. wow, this is big news though, so for the past 2 years everyone that's worked there has technically never gotten a true break, and has been getting docked a good 15-20 min a shift while doing cashouts...

        aside from that i found out recently that if i worked for at least a year( or anyone else for that matter) we would accumilate vacation time, now i, and many other empolyees that have been there for a while did not even know about vacation time until a few days ago.

        here's the question about vacation time:
        i have friends/family that used to work at this place and don't anymore, these ppl would've accumulated at least 4 weeks vacation time based on how it accumulates, now these ppl that don't work there anymore were never paid for their unused vacation time (and it's been over 6months and in some cases a year since they were terminated/quit). Isn't there some sort of law that says they have to pay the vacation time when you quit/fired?


        • #5
          Regarding accrued vacation, yes, California law does require that it be paid out at termination, along with the final wage payment.

          Your friends can file a claim for the unpaid vacation with the Division of Labor Standards Enforcement, including the waiting time penalty, which is up to 30 days' wages.
          I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.


          • #6
            So, i know it's been like a month since i posted here, but i talked to a lawyer and am currently in the process of filing a class-action lawsuit against my employer. Coincidently my employer (who owns more than one franchise restaurant) is being sued by one of the other franchises (for the same reason).

            Here's the problem, becuase the other restaurant is being sued, my manager has told all of us (the employees) that we "have to have this done by thursday"

            this is a word for word copy of what it says:

            "Please have your employees, in their own writing, create a statement which states:

            1) Their name
            2) The position they hold
            3) The location at which they work
            4) How long they have worked at that location

            Further, they must include the following points in their statement:

            1) It was my choice not to take my 30 minute meal break whenever I worked more than 5 hours but less than 6, because ________ (e.g. I did not want to lose my tips, etc.)

            2) I took my 30 minute meal break whenever I work 6 hours or more, even if I did not always clock out. I take my meal break somewhere in the middle of my shift.

            3) It takes me approximately 30 minutes to order, pay for, and eat my food

            First, my manager relieves me of all my duties. Then, I usually eat my meal in a designated break area for employees. After i finish eating, I usually use the restroom and/or wash my hands and prepare to return to the floor for the remainder of my shift.

            Also, there are times when I choose not to take advantage of the employee meal discount. Instead, I leave the restaurant and eat elsewhere. Again, before I leave, my manager relieves me of all my duties. Then I go to _____ and eat there. I take my full 30 minute meal break whenever I i leave ******** and eat elsewhere.

            At the end of the writing, please have the employee sign and date his/her statement.

            The stars indicates the name of my employer which i'd rather not say for now.

            To me it seems this restaurant is afraid of beign sued and they're trying to cover their asses by forcing their employees to write/sign documents that aren't true, i've spoken with my coworkers, and nobody thinks any of this is true and i've advised all of them NOT to write anything until i find legal advice about this. Again, like the class-action lawsuit some are afraid of retaliation if they don't write/sign this "statement". Is this right/legal? Can they terminate us for not writing/signing a statement that they are telling us exactly what to say "in our own words"?


            • #7
              Class action lawsuits for meal-break violations are rampant in California. They are also costly, as WalMart recently learned Your employer is obviously concerned about being sued for meal-break violations and wants to secure these letters as a way of limiting damages.

              I can appreciate your concern about signing a scripted letter that is factually incorrect. Your gut instinct has told you what the right thing to do is on that front. Be advised, however, there is noting illegal about your employer mandating that you provide a letter that accurately describes its meal-break practices as you have experienced and observed them. If your employer is insistent that you provide such a letter, you should comply and take comfort in the provisions of Labor Code 232.5 Notwithstanding LC 232.5, you should have an attorney review your letter before providing it to your company.
              Barry S. Phillips, CPA

              IRS Circular 230 Disclosure: This response is intended to provide general information and written for educational purposes only. It does not establish a client relationship. This communication is not intended to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to any party any matters addressed herein.


              • #8
                Ok, thanks for the quick reply, as you said there's nothing wrong with them having me write down how the meal-breaks work... but are they allowed to tell me what to write?

                The way the notice is worded, it's telling me i need to write the letter (which is what you've said isn't illegal), and also it says you MUST include these 3 points (which seems like they're TELLING me what to write and sign, instead of asking me to write based on my experiences)

                but either way, i'm having a lawyer look over the letter and all before i sign anything.


                • #9
                  As I stated, your answer is found in LC 232.5, which provides in pertinent part that "no employer may require, as a condition of employment, that an employee refrain from disclosing information about the employer's working conditions and no employer may discharge, formally discipline, or otherwise discriminate against an employee who discloses information about the employer's working conditions."

                  By forcing you to sign a scripted, factually-incorrect letter, your employer is, in essence, refraining you from disclosing information about your working conditions. To me, a clear violation of LC 232.5.
                  Barry S. Phillips, CPA

                  IRS Circular 230 Disclosure: This response is intended to provide general information and written for educational purposes only. It does not establish a client relationship. This communication is not intended to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to any party any matters addressed herein.


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