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Is this right?? California

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  • Is this right?? California

    I am currently a Chef in the state of California.
    Recently I started work at a new restaurant but things seem odd to me.
    Please inform me if any of this wrong and what I can do about it.

    1. Hours of employment is from 10:30am to 10:30pm with a 2hr. break (restaurant closed) between 2:30 to 4:30. So 10hrs a day with a 5 day work week totals to 50hrs per week. I am on salary, is this ok?? Do employees on salary get overtime??

    2. Tip taxes, who pays?? The owner takes out 10% out of the total tip to pay tip tax. Also at the close of lunch and dinner, the owner does NOT show the credit card tip total so the wait staff and chef staff does NOT know exactly what the total is and we just accept what the employer gives us. There has been speculation that the owner is stealing from the cash tip, which has been seen by some staff members.

    3. The owner also employs people without SSN and illegal immigrants. They are hourly based and do not get any overtime. I'm not sure but they might not even get minimum wage. Do they have any rights??

    If I want to report any labor law violations, who/where do I report it to??
    Can I report it anonymously??
    Any information would be greatly appreciated.

    Thank you.
    Last edited by dm101; 08-10-2007, 02:23 AM.

  • #2
    1. "Salaried" is just a payment method, and does not mean anything by itself. Exempt employees never have legal claim to paid overtime and Non-Exempt employees must be paid overtime. An employee paid on a Salaried basis could be legally Exempt or Non-Exempt. I have no familarity with restaurant classifications. I can give you a point to the federal DOL classification rules.
    http://www.dol.gov/esa/regs/complian...irpay/main.htm

    2. There is no such thing as tip tax. This is not my area of expertise, but sounds very iffy.
    http://www.dol.gov/dol/topic/wages/wagestips.htm

    3. Illegal aliens (undocument workers) are also not my area of expertise. In CA the "DIR" is the top level department handling labor issues and CA-DLSE is where employees would normally submit wage-hour complaints. I have no idea how anonymous complaints work.
    http://www.dir.ca.gov/

    Perhaps someone who is more familar with restaurant issues can give you a better answer.
    Last edited by DAW; 08-10-2007, 12:24 PM.
    "Reality is that which, when you stop believing in it, doesn't go away".
    Philip K. **** (1928-1982)

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    • #3
      DAW gave you the link regarding tips. In this page, it states that tips are the sole property of the recipient, although a reasonable and customary contribution to a tip pool can be required; that tip pool must be totally paid out however. It cannot be held by the employer. Sounds like the employer is trying to recover some of the cost of employer-paid taxes on the tips (since they are taxable wages). No can do; at least not with this method.

      Chefs CAN qualify as exempt, depending upon your responsbilities. It is by no means a sure thing, however. But, as a chef, why are you even getting tips? Is this a Benihana-type restaurant?
      I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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      • #4
        Pattymd,

        You are correct, it is a Japanese restaurant with 4-5 Sushi Chefs.

        Thanks~~

        Comment


        • #5
          Then my and DAW's prior information applies. To my knowledge, it is "reasonable and customary" to tip such chefs.

          Relative to your exempt status, though, do you plan menus, create new dishes, determine what ingredients to buy and where? Such independent judgment might qualify you as exempt. But if you merely prepare standard dishes as instructed with the ingredients provided, it's unlikely you would qualify. May I ask if you are making at least $600 per week, guaranteed? What happens if you missed a partial day for personal reasons, for example, and you were out of vacation time? Would your salary get docked for the day?
          I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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          • #6
            Pattymd,

            We go by the standard menu the restaurant has because the owner does not want us to create "special"/"new" dishes. Based on salary we do not make $600 per week. Although we work a 50hr week. There is no vacation time so we do get docked the days we miss. I do not know about partial days, I think you get payed only the time you work.

            Thanks~~

            Comment


            • #7
              CA hourly minimum wage is $7.50/hr. CA has a requirement that Exempt employees under the executive, administrative, and professional must earn at least twice the hourly minimum wage, which is where Patty is getting the $600/week from (federal limit is only $455/week). I am skeptical that you are legally exempt under the normal classification rules and you are not being paid enough to comply with the rules for the normal classifications.

              My one concern is that restaurants is not my area, and there is always at least the possibility of some exceptions that I have not heard of. I took a quick look at CA's list of Exempt classifications and nothing jumps of the page.

              http://www.dir.ca.gov/dlse/FAQ_OvertimeExemptions.htm

              From the CA Labor Code 515(a)

              515. (a) The Industrial Welfare Commission may establish exemptions from the requirement that an overtime rate of compensation be paid pursuant to Sections 510 and 511 for executive, administrative, and professional employees, provided that the employee is primarily engaged in the duties that meet the test of the exemption, customarily and regularly exercises discretion and independent judgment in performing those duties, and earns a monthly salary equivalent to no less than two times the state minimum wage for full-time employment.
              "Reality is that which, when you stop believing in it, doesn't go away".
              Philip K. **** (1928-1982)

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              • #8
                I have worked as a Payroll Manager in the restaurant industry and I don't know of any exceptions that would apply to this situation.

                OP, you are not being paid enough to be exempt and I am pretty certain that your job duties wouldn't meet the criteria anyway.

                Do you feel like addressing this with your employer? If so, this might be of help.
                http://www.dir.ca.gov/IWC/IWCArticle4.pdf

                If not, you can file a claim with the Division of Labor Standards for unpaid overtime.
                I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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                • #9
                  Pattymd & DAW,

                  Thanks for the info.
                  I plan on quitting, I'm already looking at other restaurants for employment. It's only been a month for but the other employees aren't aware of this.
                  Is there anyway that I can contact the Division of Labor Standards or somebody else to investigate what is going on?? As I mentioned before, is there a way I can do it anonymously?? The reason I would like to do it anonymously is because the word spreads quickly throughout other Japanese restaurants that I might not be able to find employment.

                  Once again, Thanks!!!

                  Comment


                  • #10
                    CA-DLSE is in the phone book and the internet. You could always send them a letter and not sign it. I am skeptical that they will do anything about it absent a formal complaint.

                    Why not just file a wage claim after you get a new job?
                    "Reality is that which, when you stop believing in it, doesn't go away".
                    Philip K. **** (1928-1982)

                    Comment

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