Restaurant & Food Services

Restaurant and food service workers have rights and protections to ensure they are paid a fair wage for the services they provide. Unfortunately, employers don’t always follow these laws, so legal action is often necessary to enforce these employees’ rights to fair pay and benefits.

McGillivary Steele Elkin LLP has handled many cases of behalf of restaurant and food services workers who have experienced violations to their pay or hours or have experienced general workplace mistreatment. Some of the most common violations by restaurant employers include:

Restaurant tipping pools that include many people who are legally not supposed to be included and therefore are taking wages from the other deserving workers
Not being paid for time spent training or training others
Not receiving overtime pay when working over 40 hours in a week or receiving it at a low rate
Not earning at least the federal minimum wage of $7.25 per hour
Not following state laws regarding the tip credit amount, which are often more beneficial than federal law
Requiring employees to perform work for which no tips are earned but paying the tip credit rate
Not getting properly compensated for all work time (for example, before or after a shift)
Reduced hours, termination, or general retaliation by employers due to complaints about workplace violations
Congress enacted a special exception to minimum wage requirements for tipped employees, such as restaurant workers. An individual is considered a tipped employee if he or she customarily and regularly receives more than $30 per month in tips. An employer of a tipped employee may use a tip credit, whereby it is only required to pay $2.13 per hour in direct wages so long as that amount combined with the tips received equals at least the federal minimum wage (currently at $7.25 per hour). If the total amount received from tips and the minimum direct wage does not equal the federal minimum hourly wage, then the employer must make up the difference.

Many states, however, require higher direct wage amounts for tipped employees or have higher minimum wage requirements. For example, in Massachusetts, the minimum direct wage is $2.63 per hour and the minimum wage is $8.00. Seven states, (Alaska, California, Minnesota, Montana, Nevada, Oregon and Washington) prohibit an employer from using tips to reduce its obligation to pay employees the applicable minimum wage. Be sure to check your individual state law for specific minimum wage amounts and validity of the tip credit arrangement. A summary of the state laws regarding tipped employees are all available here https://www.dol.gov/agencies/whd/state/minimum-wage/tipped

Below we have provided resources for more information about the pay and benefits laws applicable to restaurant and food services workers. This explanation is intended as an introduction and overview of some of the rights to which restaurant and food services workers are entitled. It is not intended to replace the detailed, case-specific analysis of a lawyer nor does it constitute legal advice.

If you have a question that is not answered in the resources below, or if you think you may be experiencing workplace pay, benefit or treatment violations, please email us at [email protected]

Employment Violations in the Restaurant, Grocery, and Food Preparation Industries

FLSA violations are rampant among restaurants, grocery, and other food preparation employers. Remember, no one can “volunteer” to work for free for their employer. Yet, employers try to either trick or to intimidate employees into doing so. Some recent cases illustrate this:

• Chain restaurants have been sued in court for working employees “off-the-clock,” failing to pay restaurant managers overtime compensation, and improperly taking a “tip credit” for time in which workers are not working in a job in which tips are paid. These cases have been settled for millions of dollars.
• Restaurants have been sued for taking a percentage of the employees’ tips when the employer charges a fixed percentage of patrons’ meals as tips. The employer was successfully sued for fraud as well as wage violations.
• Workers at meat packing facilities have sued to recover millions of dollars against facilities for unpaid time spent donning garments and preparing equipment before and after their shifts.
• Grocery works at a grocery chain have successfully sued to recover millions of dollars for off-the-clock work. The employees alleged they worked off-the-clock and their employer engaged in the following unlawful practices:
  • Punishing employees who fail to perform assignments within unrealistic time periods thereby encouraging and rewarding employees who perform work “off-the-clock” without compensation.
  • Instructing bookkeepers and others to record meal periods as non-worktime even where the employees worked through their meal periods
  • Reducing alleged salaried managers pay for disciplinary infractions for periods of less than a day. This can make the managers hourly workers eligible for FLSA overtime compensation.
  • Rewarding employees who work off-the-clock by commenting favorably on their working off-the-clock, and encouraging them to do so by suggesting promotions and other benefits may be tied to working off-the-clock.
  • Poultry workers are suing for overtime for time spent donning and taking off safety and sanitary gear before and after work hours, and for working them off the clock, and failing to pay for short breaks.
  • Chicken catchers are suing for overtime that they were denied when their employer alleged the chicken catchers are “independent contractors.”