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Fired for being a whistle blower. Legal? Options?
GalFriday
Community and Social Media ManagerNovatoRegistered User regular
Community and Social Media ManagerNovatoRegistered User regular
Alright so in an effort to be completely fair ann such I am omitting fine details from this situation also this is lengthy but a light read, perhaps entertaining?
Recently I was working at a resturant. While there I was claiming 100% of my tips as required by law. I was pulled aside by my boss and told that I was not claiming my tips correctly and that I should stop claiming them as I had been doing. She had me print a slip showing only my credit card tips (no cash tips) and said, "Now you see this? This is what the IRS knows you made. Now you can claim this." and I replied, "But what abotut my cash tips? I want to claim all of my tips for taxes." and she said, "Of course you have to claim 100% of your tips. [pause] And this (she pointed to the credit card amount) is 100% of what the IRS can prove that you made."
I was quite upset by this as some will know the importance of correctly claiming your tips for tax reasons as well as for reasons like getting a loan or establishing an income amount for (heaven forbid) workmans comp. or unemployment. I asked her if I could keep claiming the tips as I had been and she begrudgingly said "Yes" and that I could do whatever I wanted.
A few days later, however, she had her accountant come and talk to me. Now it is important to mention here that this resturant requires its employees to tip out a percentage of liquor sales to the bar. While they call it an "option" it really isnt, when you are ready to leave the manager simply holds out his or her hand and says "You owe x amount to the bar." and they stand there until you give them the money. This complicated my tips because as soon as the bar tip becomes a requirement and not an option it is a work expense and techically should be claimed by both myself and the bar as income.
I can explain this better. Let's say I made $50.00 on a Thursday night. Now either the tip out is a choice or it is a requirement. We will look at it as a choice because by law in MA it has to be. Soooo I make $50.00 on Thursday and by law I can walk out of the resturant with $50.00. My income is therefore $50.00 for that night. However when I make the choice to spend some of my money on tipping the bar it does not mean that I made less that night. I am choosing to spend my money on the premesis. This is the same as if I went to a different car and tipped that bartender. Again it has to be seen this way for a few reasons. 1. By law I do not have to tip the bar. and 2. all money exhanges hands after I have clocked out for the night. So I would claim the full $50.00 even if I only left with $40.00 because I was forced to tip the bar.
Her accountant explained that I was doing it all wrong, that tipping the bar was not a choice and that I should only claim what I walked out with. I asked what would happen if I simply dropped a $20.00 bill, would that mean that I had not earned it? and her accountant replied "Yes if you do not leave with it then you did not make it, whether you drop it, give it to the bar, or spend it on food here."
Now I know that this is not true, but I wanted to keep my job so I started claiming tips closer to the way that she wanted. I also had to be careful not to get myself in trouble since I had already verifed with the IRS that I was in fact doing things correctly.
A few days later there was a situation between myself and another co-worker. As I was cashing out for the night he spilled his apron out onto mine by accident thereby mixing our funds. Luckily I claim all of my tips and so was able to show on my slip the exact amount I should have. We both left the situation happily. However the next day my boss called me in and accused me of taking more than I should have from the co worker. I protested because he had been the one to mix the money and as I said my paperwork is always dead on. She continued to say that she felt that I had made "too much" and he "too little" the previous night. I asked if she was taking into account the fact that he does not claim all of his tips and only claims the credit card tips as she encouraged. She then said again "All of my servers claim 100% of their tips" like some mantra and then she walked away. I figured this was the end of the situation.... and I went to talk to the other co worker who agreed that our boss was acting oddly as he had had not problem with the situation.
Recently I was working at a resturant. While there I was claiming 100% of my tips as required by law. I was pulled aside by my boss and told that I was not claiming my tips correctly and that I should stop claiming them as I had been doing. She had me print a slip showing only my credit card tips (no cash tips) and said, "Now you see this? This is what the IRS knows you made. Now you can claim this." and I replied, "But what abotut my cash tips? I want to claim all of my tips for taxes." and she said, "Of course you have to claim 100% of your tips. [pause] And this (she pointed to the credit card amount) is 100% of what the IRS can prove that you made."
I was quite upset by this as some will know the importance of correctly claiming your tips for tax reasons as well as for reasons like getting a loan or establishing an income amount for (heaven forbid) workmans comp. or unemployment. I asked her if I could keep claiming the tips as I had been and she begrudgingly said "Yes" and that I could do whatever I wanted.
A few days later, however, she had her accountant come and talk to me. Now it is important to mention here that this resturant requires its employees to tip out a percentage of liquor sales to the bar. While they call it an "option" it really isnt, when you are ready to leave the manager simply holds out his or her hand and says "You owe x amount to the bar." and they stand there until you give them the money. This complicated my tips because as soon as the bar tip becomes a requirement and not an option it is a work expense and techically should be claimed by both myself and the bar as income.
I can explain this better. Let's say I made $50.00 on a Thursday night. Now either the tip out is a choice or it is a requirement. We will look at it as a choice because by law in MA it has to be. Soooo I make $50.00 on Thursday and by law I can walk out of the resturant with $50.00. My income is therefore $50.00 for that night. However when I make the choice to spend some of my money on tipping the bar it does not mean that I made less that night. I am choosing to spend my money on the premesis. This is the same as if I went to a different car and tipped that bartender. Again it has to be seen this way for a few reasons. 1. By law I do not have to tip the bar. and 2. all money exhanges hands after I have clocked out for the night. So I would claim the full $50.00 even if I only left with $40.00 because I was forced to tip the bar.
Her accountant explained that I was doing it all wrong, that tipping the bar was not a choice and that I should only claim what I walked out with. I asked what would happen if I simply dropped a $20.00 bill, would that mean that I had not earned it? and her accountant replied "Yes if you do not leave with it then you did not make it, whether you drop it, give it to the bar, or spend it on food here."
Now I know that this is not true, but I wanted to keep my job so I started claiming tips closer to the way that she wanted. I also had to be careful not to get myself in trouble since I had already verifed with the IRS that I was in fact doing things correctly.
A few days later there was a situation between myself and another co-worker. As I was cashing out for the night he spilled his apron out onto mine by accident thereby mixing our funds. Luckily I claim all of my tips and so was able to show on my slip the exact amount I should have. We both left the situation happily. However the next day my boss called me in and accused me of taking more than I should have from the co worker. I protested because he had been the one to mix the money and as I said my paperwork is always dead on. She continued to say that she felt that I had made "too much" and he "too little" the previous night. I asked if she was taking into account the fact that he does not claim all of his tips and only claims the credit card tips as she encouraged. She then said again "All of my servers claim 100% of their tips" like some mantra and then she walked away. I figured this was the end of the situation.... and I went to talk to the other co worker who agreed that our boss was acting oddly as he had had not problem with the situation.
@Ga1Friday is the twitter account I use to talk about everyday things. Sometimes work things. Lots of work things.
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That Saturday night I took a shift from somone that wanted off. More than anything I wanted to show that I was not trying ot be a toruble maker. I consitently had good comments on our comment cards, completed all of my side work and helped my co workers. Covering shifts was another thing that I did to show that I was trying to be a good employee.
Anyhow on Saturday we had a 15 year old working as a busser. 15 year olds cannot work passed 9pm in MA. When it became after 9 the hostess and daughter of the owner walked up to him and screamed "You are not allowed to be on the clock! Punch out and get back to work!" and I reacted without thinking and said, "He can't do that, it is illegal." and she replied ,"It is what we always do, I'll get my mom."
The minor was visably upset and did not want to work under the table. I heard her daughter talking with her mom and mentioning that I had said it was illegal to which the owner shot me a look and then went to the minor. She told him that he had to be off the clock but that they would pay him and she would fix it so that he was on the clock for all of it. Then she went to our time clock and manually overrode his punches so that he arrived an hour earlier that day and had punched out by 9pm. Her daughter came up to me and explained that it was not illegal and I simply walked away.
The next day that I worked everything was fine with my tables but my boss kept trying to get me to slip up; asking me if I had paid for my meal (I had) and implying that I had eaten more than I had orderd (not true and the kitchen backed me up)
The next day I went in to work and she fired me. She said that it was wihtin my 90 days and she did not need a reason. I asked her what I had done wrong and she said that I was not living up to the standards of the resturant. I mentioned that I had never forgotten an order, dropped food, or flipped off a manager (all things that my coworkers had done in the previous 24 hours) but she only repeated that she "didn't need a reason."
So what do you think, was I fired for mentioning her illegal behaviour? Does this seem fishy to anyone else? What can I or should I do?
While there is a 90 day probationary period it is not a Hire at Will therefore legally she -does- need a reason to fire me, so there's that as well.
What this restaurant is doing is illegal, but not uncommon. You might be able to make a case and eventually sue for backwages, but it's more likely that you're just going to have to find another job. Unfortunately, this is just a common thing.
And honestly, from the way you describe the management, you seem better off. I know a job is a job in this economy, but I've worked for horrible bosses and they just make your life hell. You should be able to find another waitress job fairly easily, I would think.
Also, just a tip (no pun intended), tipping out various portions of the restaurant (bar, bussers, etc.) is standard practice in pretty much all restaurants. If you want to continue to work in the service industry, I'd suggest you not grouse about it where you work. That system is in place for a reason. The bartender is taking time out of helping his customers to make you a product for yours. That's why you do that. You're going to end up with some VERY unhappy coworkers if you express your unhappiness about it and probably find yourself out of a job again.
I doubt you have any hope of getting more out of this than a good learning experience. The system is set up to let "legitimate business men" get away with this kind of thing.
You did the right thing and got punished for it, you might need to get used to this happening. It sucks that an honest person needs to deal with petty corruption like this but finding a way to handle it without losing your mind is the best advice I can offer. If one person could change things like this it would have been done by now.
Hopefully the push for a cashless society will keep some of this crap in check as time goes on.
It's not the restaurant wanting them to do it, it's the employees. Most bartenders/waitresses want to claim less of their tips so their paychecks don't get jacked as much and they don't have to pay as much in taxes at the end of the year. I've never worked anywhere that I was forced to claim a certain amount. It was up to me to decide, and if I got called on it by the state, that would be on my head.
But that's neither here nor there and this should not descend into a tipping thread, just thought you might want to know.
Best you can is to tell everyone how they treat their employees and encourage them to dine elsewhere. Don't know if chain places (TGIFridays, Outback, etc.) would be "more" by-the-books if you're concerned about that sort of thing.
Yeah, but telling people to go elsewhere hurts the employees even more. Less business = Less tips. Just let it go. You've got better things to focus on. Like finding a new job.
Oh yeah, I wouldn't recommend hanging around in front with a sandwich board, but if anyone asks, feel free to tell them they had 'creative accounting'. Of course, will there be a problem with references, or is that not a big deal in the food industry?
It's a pretty big deal.
My concern is that I was fired over the fact that I was claiming all of my tips. I am worried that by doing this the correct way that she felt it was a reason to fire me.
Also the whole thing with the minor really bothers me.
I am currently looking for another job so this is not about getting back there, but it is a small town and there is something to be said for establishing that I was not truly at fault for being let go and that I was in fact let go due to my attempts to do everything on the up and up. It is a pretty big deal to have a bad reference in a small town. even if I do not list this establishment the town is small enough where i have no doubt that people will murmur about how I did "not live up to the standards" of the place when in reality I just didn't want to partake in the illegal aspects of what should be a very simple and enjoyable job.
Here is the skinny on the tips thing: I have to claim everything. It is important that I am allowed to claim everything that I make. At the same time if I am, after I have clocked out and after I have claimed my taxable tips, forced to pay out tips to the bar it creates a paradox as I should not be paying taxes on money that I am forced to give to the resturant and therefore am not walking out the door with. Make sense? So I was between a rock and a hard place: claim my tips in an illegal manner but pay less taxes or claim my tips legally and then get taxed on money that I did not actually have in my pocket. @Esh. I always tip my bartenders and bussers (we did not always have bussers) the issue was that it was a requirement and if it is one then it should be seen as a work expense. I have worked in the industry off and on for over ten years, I am very well versed in how to tip appropriatley and this place was not doing it.
Everything was fine until I was claiming tips the legal way, the 'final straw' as it were really seems to be that I questioned having the minor coworker work while off of the clock. My performance in the job was fine.
So, yes, the tips thing is annoying sure, but really I want advice on how to handle or report the way that the resturant is handling minor workers... in comparison to how they are treating the minors the tips thing (though frustrating) is clearly secondary.
So I hope that that answers some questions, sorry if it was vague before
I've been in this situation once before with a really incompetent floor manager and I ended up being let go with no real reason given because of it.
My guess is that the reason you were fired is that from their viewpoint, you were a pain in the ass and not being a team player. Constantly questioning your superiors (especially in such a disposable environment as a restaurant) is a real quick path to getting canned. They probably just decided you were more trouble than you were worth and decided to find someone who wasn't. I don't think it's anything more complicated than that. Honestly, I'd just leave it off your resumé if you didn't work there very long. Chalk it up to a life lesson and move on. It doesn't sound like that great a place anyway. You're probably better off for it.
EDIT: I gotta ask though, if you've been in the industry for so long, why is it so surprising to find people not claiming 100% of their tips? Or is it not that, and you're just weirded out that they're basically forcing you to not claim that much?
Yeah, you tip before. Did they specifically tell you to tip out AFTER you clocked and claimed your tips? You should have set it aside when looking at your reports and before claiming for yourself.
This is correct. The money that was allocated to the bar was never yours, you were simply carrying it from point A to point B. Much like a pizza delivery man does not have to claim the value of the pizza itself as his income when he hands that money over to the restaurant at the end of the night. It was simply never yours to begin with.
Labour board? This is 'murica I am assuming. There really isn't anyone to call. I guess you could get a lawyer and sue but that probably wouldn't get you anywhere.
Esh is right, knows what he is talking about. The employees want to cheat on their tips, that way they take more money home. You insisting on doing it the correct way I'm sure they see as a hassle, so they canned you. Basically you are putting up a big sign for the IRS saying "Audit here" and they don't want that. I doubt you will find any restaurants where people actually want to claim all of their tips.
Making someone work off the clock is pretty shady though, I would drop a letter to OSHA.
Edit: OSHA is more like a super labor board thing, and they probably will never get around to checking it out, but they might.
but they're listening to every word I say
I really doubt that the kid was being forced to work. He/She was being paid after 9pm, just under the table. Unless the OP is just feeling really spiteful, that's nothing to call the authorities down on. I worked lots of under the table jobs as a minor.
EDIT: That's something for the kid's parents to do. Not you. If the child is actually upset about what happened, they'll tell their parents about it and it will be resolved by them.
Restaurant business is a freaking dirty business. A lot of stuff that is 'illegal' happens anyways because, shit, sometimes you just gotta do what you got to do. That movie 'Waiting' wasn't too big of an exaggeration. If you go against the grain, then it's no surprise that you gotten fired.
It's MA and they have a Department of Labour, that is exactly who you call.
The idea of suing over whistleblower status would likely only appeal if you actually were fired for being a whistleblower. A family run business will mean that it'll have to be to the government because the top of the business is against your interest. From what I read, you didn't actually report them. It seems like a lot of what you're talking about falls into the realm of "he said, she said." Legal fees for pursuing that kind of action add up and a lawyer won't likely make enough money from it to merit a payment on outcome.
It should be noted that the IRS is perfectly aware that restaurants are the most tax dodgy businesses out there. You would be amazed by some of the request I've gotten from restaurant owners regarding deductions and payroll. I've seen some, frankly, bizarre expense reports. Businesses that are barely breaking even while the owners are pocketing substantial sums of money. Restaurants commonly leave entire transactions off the books if the people pay in cash because the IRS cannot trace it. Losing food is a common expense from mistakes or whatever. The auditing process is a complete nightmare, so even if the IRS does go through the audit, the perishable nature of products makes it like finding a needle in a stack of needles. Any investigation or auditing would end with nothing provable if these business owners are remotely experienced.
Now, Massachusetts might, and probably does, have different laws on the books regarding this specific thing but the challenge you face is that misconduct is tough to prove.
SteamID: devCharles
twitter: https://twitter.com/charlesewise
Everything you complained about is standard operating procedure in the restaurant industry. I would suggest a new line of work if any of these things bother you.
Thinking the bartenders and such aren't entitled to tips sounds pretty odd to me though.
I am pretty sure, but don't know, that the MA whistleblower statute applies to private sector employees. The only sensible advice is to talk to an attorney. An attorney can tell you 1) if their practices were illegal, 2) evaluate your odds of success on the merits, and c) tell you if the suit is worthwhile
based on the damages available to you. Nobody here can do those things.
Technically, you did nothing wrong. Keep in mind, when you're hired most jobs [and states] have an 'at will' clause that basically says you can be fired for any which reason comes to mind.
I know it sucks to hear, but forget about it & try to get another job. Preferably not restaurants since (IMO) you'll likely make it harder for yourself than it needs to be.
Oh, one more thing - probably shouldn't call yourself a whistleblower, you didn't do squat. As someone else mentioned, you were mainly a pain in the ass and easily replaceable. That's the culture.
Besides not wanting to tip the barstaff.
We're not necessarily saying that he was an objective pain in the ass. We're saying that's how he was perceived by the rest of the staff.
In restaurant work, it's best to just put your head down and "yes sir, no sir" unless there is something going on that is actually going to cause harm to yourself or someone else. In a lot of places, employees are very disposable (such as where the OP works) and conducting yourself like the OP is very likely to you canned.
This generally isn't an issue in a well run environment with a team of staff that works well together. But again, this place sounds like a clusterfuck, so he/she is better off just writing this one off.
Although, when I used to run a bar, if I had a server complaining about bar-staff tip-out, I'd can them right then and there for not being a team player. Don't fuck with your bartenders. Having a group that works well, and likes each other is essential.
Does this mean they can get away with those labor practices?
No. You can file report at the labor board with what you've seen. They might even investigate. They might even fine them . . . . but the job is gone.
Find a new one and move on. In the future, if you want to work in a restaurant, you might want to check the "I know better than you do" attitude at the door. That way, you can file the complaint, and still keep the job.
By all means file the complaint... under-16's aren't supposed to work after 9 for a reason. You're just unlikely to see much in the way of personal gain in the form of money or job from doing so.
Adapt to the fact that society tolerates a certain degree of corruption or become an entrepreneur/self-employed person.
no, that isn't usually how whistleblower protection acts work, because if they did they'd only function if the person did the exact opposite of what common sense dictates - first report a problem to their superior before running to the gubmint. a whistleblower statute that functions in the way you describe would require that employees report all compliance issues no matter how small to a government agency before they try to fix them internally.
your point about personal gain is possibly true but that's why i told him to talk to an MA lawyer - i have no idea if there's a qui tam action to be brought here or damages or attorneys' fees or whatever. the only person who would is an MA lawyer who knows the MA statute.