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didnt get lunch or reg breaks California

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  • didnt get lunch or reg breaks California

    My daughter worked at a restaurant that never gave 10 min breaks or the required 30 min lunch breaks..if she files a complaint with labor board, how does she prove that ? Isn't it just her word against managments ?
    She went & took a 10 min break one time after I told her she was allowed that and mngmnt got all over her about it...and she never got a 30 min lunch ever, I know how the hours for lunch & a break work because I looked it up. This restaurant does this to all employees..my other daughter still works there...they are (were) hostess's

  • #2
    Yes it is the employee's word against management. Yes, there is no "sure thing" when one files a wage claim. CA-DLSE always, always, always gets to listen to both sides and always gets to make up their own mind about whose story they like best. The only sure thing is that if the wage claim is not filed, the employer always wins.

    Just a suggestion, but arguably the employee should:
    - Start keeping records. Do so at home. Pen and paper notebook works great. Do not tell anyone what they are doing, especially no one at work. One should assume that any conversation at work is promptly repeated to management.
    - Restaurant jobs with bad employers are not worth keeping over the long run. Sooner or later the employee will move on. When that happens, file a wage claim on the way out the door. It works or it dos not.
    "Reality is that which, when you stop believing in it, doesn't go away".
    Philip K. **** (1928-1982)

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    • #3
      Thank you, I thought it was her word against there's
      But yes she should file, does she just call and tell dept labor and they send her paperwork ? Or how does it work ?
      Its to late for the daughter that quit there to keep records but I will let my other daughter know.

      Originally posted by DAW View Post
      Yes it is the employee's word against management. Yes, there is no "sure thing" when one files a wage claim. CA-DLSE always, always, always gets to listen to both sides and always gets to make up their own mind about whose story they like best. The only sure thing is that if the wage claim is not filed, the employer always wins.

      Just a suggestion, but arguably the employee should:
      - Start keeping records. Do so at home. Pen and paper notebook works great. Do not tell anyone what they are doing, especially no one at work. One should assume that any conversation at work is promptly repeated to management.
      - Restaurant jobs with bad employers are not worth keeping over the long run. Sooner or later the employee will move on. When that happens, file a wage claim on the way out the door. It works or it dos not.

      Comment


      • #4
        http://www.dir.ca.gov:80/dlse/HowToFileWageClaim.htm
        Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

        Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

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        • #5
          The Senior Member

          The Senior Member above doesn't really know what he's talking about or at the very least seemingly provided a very vague reply.
          In California meal and rest breaks have long been a hot topic due to the when's, whats why and wheres. Major cases such as the brinker case and others are still being hotly debated, in fact are scheduled to be heard in the California supreme court sometime this summer. The burden of proof is on the employer to ensure your daughter takes a meal break no later than the 5th hour if she is to work more than six hours. Additionally she is entitled to a rest break as well. Failure for the employer to provide or deny the meal break results in two separate hours of penalty that is payable and recoverable with a wage claim.
          Now I could go all in to the complete specifics, but the best thing for you to do is file a wage claim with the DLSE. It is up to the employer to keep records, not employee

          Comment


          • #6
            The Senior member is very knowledgeable when it comes to labor laws. He also knows that his opinions are just that. The DLSE will make their own decision. The DLSE website ( revised 03/07/2008) states that the employer must provide the employee with a meal break There is no mention that the employer must ensure the employee take the meal break. The Brinker case will (hopefully) decide whether the employer must mandate that meal breaks are taken or merely be made available to the employee.

            Failure to provide meal and rest breaks in California do not result in a penalty. The employee may be entitled to an hour's wage for missed meal and for missed rest breaks. That came from Murphy v Kenneth Cole where the state Supreme Court ruled that the monies owed were not a penalty but a wage and therefore subject to a three year statute of limitations instead of one year.

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            • #7
              Originally posted by drake01 View Post
              The Senior Member above doesn't really know what he's talking about or at the very least seemingly provided a very vague reply.
              In California meal and rest breaks have long been a hot topic due to the when's, whats why and wheres. Major cases such as the brinker case and others are still being hotly debated, in fact are scheduled to be heard in the California supreme court sometime this summer. The burden of proof is on the employer to ensure your daughter takes a meal break no later than the 5th hour if she is to work more than six hours. Additionally she is entitled to a rest break as well. Failure for the employer to provide or deny the meal break results in two separate hours of penalty that is payable and recoverable with a wage claim.
              Now I could go all in to the complete specifics, but the best thing for you to do is file a wage claim with the DLSE. It is up to the employer to keep records, not employee
              And how is what you said any different than what DAW said? DAW is very knowledgable in CA law. However when working with a government entity nothing is absolute. It sounds as if you are saying information you read while DAW is giving knowledge she has learned with actual interaction with the state.

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              • #8
                FYI DAW is a he....

                Drake, since you disbelieve everything posted here, please feel free to take your concerns elsewhere.

                Either that, or start providing evidence to prove your point.
                The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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                • #9
                  Sorry DAW, my mistake.

                  Comment


                  • #10
                    Well now youre actually making a statement that is more on topic. Merely saying "they decide what story the like best" is redundant. As is not the case in almost all hearings. Evidence is what decides a case. Brinker in a pro employer court most likely will be decided that the breaks must merely be made available. To which the court will rely on preceeding cases. However, in reality in most jobs the issue of whether or not an employer mandates a break is a slippery slope in contrast to tamney and the flsa as well as long standing iwc orders. The dlse has little to nothing to do with the outcome. Personally I think if it is settled for brinker, it will be a great set back to labor rights.

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                    • #11
                      drake01, may we have your qualifications to address employment law issues please? Between cbg, Beth3, DAW, and myself, we have over 75 years (or more) of experience in exactly this area.
                      I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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                      • #12
                        If evidence was the only criteria in deciding cases, there would be no need for appellate courts. Decisions are mostly based on a judge's interpretation of the evidence and the law. An example of that is Rutti v Lojack where several judges from the Ninth Circuit Court came to different conclusions while examining the same evidence.

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                        • #13
                          drake01

                          You have every right to your opinion and I can only assume you have some experience, however I think your mistake on these forums is your negativity for those giving advice. Try being a little less condescending in your reponses as you are fitting the stereotypical definition of 'lawyer' and it's really not pleasant.

                          Comment

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