Not Getting My Fair Dues, Maybe [Work Question]

Charles Kinbote

Howdy all.

I'm a rising sophomore in college who is trying to save some money to take a gap year and travel abroad this next year. Money is a pretty big priority for me right now.

I recently got a job at a local upscale cafe kinda place that doesn't do great business. It's hardly sinking, but it only does lunch and is a little far removed from the usual restaurant sections of town, so it's far from being a bumping spot.

I was hired to be a server. Because I didn't have any server experience, they were a little trepidacious about hiring me, and didn't put me on the payroll until the second day - I wasn't technically "employed" until then. At the end of the second day, the manager handed me $43 for the previous two days (ten hours) of work. When I pointed out that training wage was 9.25, she pointed out that (A) it had been a "trial basis" and (B) I had been tipped out $13 at the end of the second day, thus making me a server, thus there was no need for me to have training wages (hm).

That sucked, but I was willing to let it slide. However, things haven't gotten much better. Today and yesterday I worked as a server, making $30 the first day and $20 the first day because I had barely any tables. I get $3.25 an hour because I'm a server, which basically covers taxes.

I approached the manager about this yesterday and pointed out that the state had a "living wage" of 9.50 or so for employees of businesses that employed more than 20 people. She said that as long as I was being paid server wages, that didn't count - is this true? Her reasoning was "over time, it averages out" which is untrue on a very basic level - if I don't get more than four or five tables a day, averaging out isn't gonna change anything.

Is she legally in the right, or am I fucked? I need to make money bad - I am in no position to be working five hours a day for twenty bucks. I know the job market is shit and I'm lucky to have anything, but this strikes me as wrong, and if I could walk in there and point to a law that said that the restaurant has to make up the difference between living wage and what I make (as a friend who did a lot of work for living wage activism said it did), I would do so in a heartbeat.

dispatch.o

Depends on your state. Call the labor board and ask them. I know servers can make less than minimum wage in some places on an hourly basis, but it has to average out to at least minimum wage over every two-week period including tips or in some places theyre required to pay the difference.

If she's handing you cash, it's under the table and they don't plan on even claiming you as an employee, you should bust them and then quit.

Djeet

Check your state labor laws. My understanding is that waitstaff had to be brought up to minimum wage if they couldn't clear that on wages and tips, though you may have to work for 2-4 weeks before they can determine if you're going to average out to clear less then minimum wage.

It was also my understanding that as waitstaff, if you had to regularly get corrected up to minimum wage you're probably going to be let go for poor performence. And if the location is so bad that no servers can clear minimum wage the establishment is probably going to go belly up.

mully

Where are you geographically, right now?

bowen

Almost all the states have a payout requirement if you make less than minimum wage over a 1-2 week period. Call your local DoL, and also figure out if you're below min wage. The alternative is to find a new job. Might I suggest looking at another food establishment in another part of town that gets a lot more business? You've got the experience.

MichaelLC

dispatch.o wrote: »

If she's handing you cash, it's under the table and they don't plan on even claiming you as an employee, you should bust them and then quit.

Since they're paying you cash, above post is probably spot-on. Cash is good for everyone if you're profiting, but since it sounds like they're hurting they're keeping you off the books to screw you.

I don't know if I'd "bust them," I'd just quit and look elsewhere - try either a busier place, or maybe a stocker/warehouse job somewhere?

Charles Kinbote

I was only on cash for the first two days - since then I've been clocking in and out and have been on the paperwork.

VisionOfClarity

It averages out but it's more like over a week maybe two at most. She definitely fucked you on the first two days though and it sounds like she's trying to screw you out of the proper wage. I'd reconsider being employed here. I'd call the Labor Dept for your state to find out the law. If she still screws you file a complaint with them and the AG and let her explain to the labor dept why she's not paying her employees correctly. Her excuse about the first 2 days wouldn't fly with them.

darkmayo

Either way, the place isnt cutting it, start looking for a new job, the time you spend looking into it with the labour department is time you could be job hunting, as well even if you are right and the labour board does something management wont be happy at all

Charles Kinbote

Oh, and I'm in New Mexico, if that helps.

bowen

darkmayo wrote: »

Either way, the place isnt cutting it, start looking for a new job, the time you spend looking into it with the labour department is time you could be job hunting, as well even if you are right and the labour board does something management wont be happy at all

They'll get him his back pay as well as everyone else who's been fucked once they start investigating it. It's worth it just for the piece of mind that you'll keep someone else from getting fucked and them profiting from it. Of course you should look elsewhere in the meantime.

Aioua

http://www.dws.state.nm.us/dws-qlid.html

Unfortuately, they don't address it directly in their FAQ, but number 4 seems to imply that you *must* be paid the minimum wage, so they will probably have to pay you the difference. Give your DoL a call to get the specifics.

Quid

I've waited tables in multiple states. You are entitled to minimum wage no matter what. If you make it through tips then in most states they can pay you less than minimum wage ($2.13 I think it is). However, if you don't make minimum wage by the end of the day they're legally obligated to pay out the difference to you. There is no place in America where you can wait tables and not make at least minimum wage every day through either tips or wages.

Edit: It's worth noting that on the few occasions I didn't make minimum wage I wouldn't see the difference until my paycheck.

bowen

$30 a month in tips with a $2.13/hr wage != 7.50 an hour. Who the fuck did that math? That's 7.50 a week. Which is like.. 19 cents an hour.

Isn't it almost $860 a month in tips to make up the difference from 2.13/hr at 40 hours a week?

MichaelLC

$2.13/hr @ 40hrs per week = $85.20 x 2 = $170.40 per paycheck.

$7.50/hr @ 40hrs per week = $300 x 2 = $600 per paycheck.

So you'd need $429.60 in tips or 'make-up pay' to be at minimum (assuming 7.50). edit: That's for a two-week period.