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This is pretty interesting so far! I'm looking forward to the next part.
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Sep 5, 2017 00:12
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Hi! I'm not in the restaurant industry, but I am a payroll accountant. Bartenders shouldn't be classified as FLSA-exempt workers -- meaning you cannot legally be paid on a salary basis (unless you're actually for real a manager). You must be paid an hourly rate for all hours worked and you should also receive overtime for any hours in excess of 40 hrs per workweek. Tips count towards making up the minimum wage set for servers in restaurants. Your managers should not be stealing your tips, either. Tip pools are fine as long as the staff being tipped out are employees who customarily receive tips. These are federal protections. As far as state laws go, employees receive the benefit of whichever rules are more favorable to them, state or fed. https://www.dol.gov/whd/regs/compliance/whdfs15.pdf Get a new job and file a grievance with your state DoL.
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Oct 28, 2017 05:25
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mindphlux posted:Glad you posted in here. I'm sort of wondering if the owners are just idiots who know nothing about employment law, and are planning to issue a 1099 or something to our poor friend - which correct me if I'm wrong, but there's basically no position in a restaurant that could be considered a 1099 job except like, bookkeeping, nightly cleaning (maybe), management consulting, that sort of thing? Everything else would be a W2 salary or hourly?  coming upThere's a whole test to determine whether you can classify a worker as a 1099 contractor, but loads of employers gently caress this up (whether that's an accident or not is an exercise for the audience). If you're misclassified and incorrect tax statements are issued for you, you have to take it up with your employer, and if they won't issue a correction, then you have to make your case to the IRS and state dept of revenue so they can force your employer to make the corrections. This is a massive pain in the rear end. The details of the IRS test for independent contractors are up on their site, but largely the classification is about the degree of control the worker has over the place, time, nature, and means of the work. This is why most cleaning staff are actually employees of a staffing company that holds the contract to clean offices or whatever instead of being independent contractors or employees of the place being cleaned. It's a nice fiction to minimize wages and benefits. That reminds me -- it's always prudent to ensure that your employer is actually sending in your employee payroll tax deductions (the stuff that shows up on your paystubs) if you think your employer is loving shady. My city had a pretty big case with a restaurant owner who basically stole all those withholdings instead of remitting them to the state and federal governments. While it's a crime for him to do so, the theft doesn't let the employees off the hook -- they still owe unpaid taxes. As far as the service charge goes, I'm betting that in reality, most restaurants gently caress up the minimum wage tip credit bit as usual. There's argument that service charges that are explained on the menu as a compulsory tip are economically identical to tips and therefore must be handled as such, but the current guidance is now pretty firm (at least as written; companies will comply or not). Some owners are really resistant to applying these things correctly even when they hire pros for their guidance. Anyway this is the longest fuckin post I've written on the phone, holy poo poo
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Oct 28, 2017 07:47
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Just remember that you receive the benefit of whichever (fed vs state) law is stricter (that is, more beneficial to you, the employee). Talk to your lawyer friend first and be ready to jump ship if politely notifying your employer of their error goes sour. And of course please notify the dept of labor if your employer doesn't correct the error too. That's the only way to push back against these practices in the long run.
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Oct 28, 2017 19:14
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