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waiter in privately owned restaurant California

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  • waiter in privately owned restaurant California

    hello..

    Let me first thank you all in advance for any help you may provide. I work in a small restaurant with one sole owner, he's more or less the manager. I've been working here a little over a year and the first thing I noticed is things are a bit disorganized. As I understand it his "payroll dept" is his wife, theres no set payday and, if I do not have cash at the end of the night, tips are paid by check later on, some times weeks later. I'm currently waiting on two paychecks from 6/21-7/4 and 7/5-7/18. This is actually quite typical of my employer and while i don't think its the biggest deal in the world, I would like him to be a bit more prompt when it comes to my checks. I haven't brought this up to him yet and I'm not really sure how to. He's not so easy to talk to when it comes to me telling him what he needs to do. I really don't want to get on his bad side. It seems to me he is either completely unaware of the laws or just doesn't give a ****. If you read my other post you'll see the other problems I've had with him.

    http://www.laborlawtalk.com/showthre...17&pagenumber=

    Since then he has agreed to pay me minimum wage but, initially he cut my hours drastically from 5-6 doubles a week to 2 night shifts (friday/saturday).. now that I am basically the only permanent waiter he has left I have been back to 5 shifts a week. (Everybody else quit, which i am sure many of you will advise me to do but, honestly I don't think that's the best way to handle this.)

    Well instead of ramble on iI'll leave it at that for now. Please, if any of you have any advice on how i can get this guy to follow proper labor practices without starting a fight. CHIME IN!! THANKS AGAIN!!

    ...and to all of you who are going to tell me to go find a better job... save it please..

  • #2
    nobody?? well i guess i will be sending in a wage claim.. i really hope we can settle this peacefully...

    Comment


    • #3
      Sorry, I looked at your other thread where you were advised to file a wage claim then. I'm not sure what other advice you're looking for.
      I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

      Comment


      • #4
        thanks for the response patty.. i guess i was hoping to resolve this without having to file the claim.. although it seems very likely doing so will be the only way to get him to seriously consider the laws in regards to paying his employees.. i just don't want him to be fined up the a$$ and charged with a misdemeanor.. plus the process will most likely result in him not liking me as much..and possibly wanting to replace me.. then i'll have to file a retaliation/discrimination claim as well... or who know's maybe it will cause him to close the restaurant down.... aaahhhh.. sorry for the rant...

        Comment


        • #5
          Don’t hold me to this…

          But after doing some research under UI benefits, you might be able to quite quit on the ‘reasonable person’ standard due to non-payment and file a claim against your employer.

          I don’t believe he would get fined, however I believe the state would force your employer to pay or fines would be issued.

          Again, just my hunch, but you may want to look into this. It could help you out with benefits.

          Comment


          • #6
            Thanks for the response random..

            i've just mailed the claim on saturday.. i have not recieved a check since june.. and since there have been new employees hired i explained to him that we need to post a pay day and stick to it or this could happen.. (and im sure someone smarter than i would not wait 4 months.. ) so he he said friday was the day.. come friday.. no checks.. and of course we get the usual "i'll prepare if for you sunday"... and "i need to go to the post office".. and sometimes during the week when its slow he'll call me and "give me the night off" on days he says he'll have my check..

            hahah.

            anyway,, i don't really want to quit.. unless of course he just can't change the way he "does business" i just hope that he'll take it seriously once dlse is involved.. thats good to hear you dont think he'll be fined.. i'd rather he wasn't.. hopefully we can just resolve it informally and have the case withdrawn..

            thanks again

            Comment


            • #7
              You should also file for unemployment since you are not getting paid. That should force the issue.
              I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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              • #8
                unemploymen?? i am still receiving my tips each week.. or does that not matter??

                oh and btw.. to keep us up to date on the situation.. i was supposed to come in tuesday for work and was told my check would be there.. come tuesday i get a call telling me to take the night off.. and today the same thing.. i'm betting he doesnt have a check for me... i work for sure tomorrow.. a friend of mine said i should tell him that i will not work unless he pays me up to date.. i honestly dont think thats a good idea.. any thoughts??

                thanks again for your replies

                Comment


                • #9
                  That doesn't matter, because in California, you must be paid the full minimum wage without regard to tips. In CA, tips are in addition to your pay for hours worked, and such pay cannot be offset by tips.

                  I can't guarantee it, but I'm guessing that you would qualify for unemployment if you quit because you are not getting paid; in effect a "constructive discharge". You don't give up your right to your wages by filing for UI.

                  And I disagree with RandomGuy; I DO believe he will be fined. He is intentionally violating the law.
                  Last edited by Pattymd; 08-18-2010, 05:18 PM.
                  I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

                  Comment


                  • #10
                    thank you for the timely reply patty.. good to know that if i decide to quit i can collect UI.. although i'd rather not quit.. one question i have though... what if he fires me or tries to get me to quit by cutting my hours after hearing of the wage claim i sent? thats retaliation/discrimination right?

                    Comment


                    • #11
                      Sort of. You can file a wrongful termination claim. The employer can/will claim that the termination is for another unrelated (legal) reason). The judge will listen to both sides and decide whose story they like the best. No sure things.

                      Also, just to be clear.
                      - Firing someone who actually filed a wage claim BECAUSE they filed the wage claim is not legal.
                      - Firing someone who complained but did not file a wage claim is likely legal.
                      - Firing someone who filed a wage claim for a different reason is likely legal.
                      - Firing someone for no reason at all is legal (Employment At Will).
                      - Firing someone because it's Wednesday or the Boss's favorite sports team lost is legal.
                      - An illegal termination means that an actual law was broken. And actual laws tend to be very narrowly worded, since terminations are generally legal and there is no legal intent to completely reverse the basic concept of At Will employment.

                      Either way, the employee is still fired, but whether or not the firing is legal is a function of the judge making a decision.
                      Last edited by DAW; 08-19-2010, 08:13 AM.
                      "Reality is that which, when you stop believing in it, doesn't go away".
                      Philip K. **** (1928-1982)

                      Comment


                      • #12
                        Originally posted by DAW View Post
                        - Firing someone who actually filed a wage claim BECAUSE they filed the wage claim is legal.
                        Was this a typo?

                        Note that I said I was "guessing" that you would be granted UI benefits if you quit because you aren't getting paid. I didn't say it was guaranteed.
                        I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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                        • #13
                          Typo indeed. Thank you.
                          "Reality is that which, when you stop believing in it, doesn't go away".
                          Philip K. **** (1928-1982)

                          Comment


                          • #14
                            wow that was a big typo.. you had me worried for a minute.. because if it was in fact legal i am 100% sure my employer would take full advantage and fire me for filing the claim.. as far as the fines go... i really don't want him to be fined as i believe it will only hurt the business and ultimately my job... is it possible that if our matter is resolved during the initial conference.. fines may be waived?? i just received a letter back from dlse with a conference date the beginning of sept. I am guessing he also received a similar letter so we'll see if he says anything to me tonight when i go into work.

                            thanks again

                            Comment


                            • #15
                              If you were the state of California, wouldn't you assess fines if you could? You're broke, remember?

                              I think you're being overly concerned about him, when he hasn't been concerned enough about his employees to either know the law or comply with it.
                              I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

                              Comment

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