My employer had been drinking heavily on the day in question. He messed with breakers causing my order not to go through to the kitchen. After 20 mins I asked where it was and the food was never made. My boss gave me two options; I could either pay for th

I repeatedly checked in the kitchen to see if the food was up and I was told that the ticket never came up. Tom had already been drinking and belligerent to other employees at that point.I went to check with the guest if they still wanted the food. It just so happened they were walking in to pay for what they had consumed leaving about $50 worth of unmade food on the bill that had to be settled. Because I need my job I just paid for it making no money that night. I was told it would be voided off but I'd have no job or I'd never have this happen again. Since that night, I've still not been put on the schedule. If anything, I've been crossed off completely without any notice.

1 answer  |  asked Jun 17, 2016 02:35 AM [EST]  |  applies to Florida

Answers (1)

Phyllis Towzey
I assume that your employer takes a "tip credit" under the wage and hour laws and pays you a base pay of less than minimum wage. If that is the case, then requiring you to pay for walkouts, breakage, kitchen errors such as the one you describe, etc. is illegal.

So, where does that leave you? Well, if this is an isolated incident, the employer owes you the $50, plus full minimum wage for that work week (since violating the tip credit voids the right of the employer to take the tip credit for that week), x 2 for liquidated damages. Also, if you have in fact been fired in retaliation for objecting to this practice, you also have a claim for wrongful termination under the Fair Labor Standards Act (the wage and hour laws).

My suspicion is that if this incident occurred it's probably not the first time your rights have been violated. You have three options, in my opinion:

1. Make an appointment to consult with an attorney and review your situation. Many attorneys practicing in this area of the law provide a free initial consultation (I do not - I try to help people out through MEL, but I charge for consultations). Your lawyer can then evaluation your claim and send a demand letter to the employer, or even file a lawsuit.

2. Contact the Department of Labor. Here's a link that walks you through that process step by step: https://www.dol.gov/wecanhelp/howtofilecomplaint.htm
The DOL will investigate your claim and audit the business on behalf of all employees. Typically they work out a settlement plan with the employer to get everyone who has worked there in the last 2 years paid properly, and to stop future violations.

3. You can just write this off as a bad experience and walk away. You are out $50 that we know of for sure, and you were working in an bad environment where the owner is apparently habitually drunk on the job. It is illegal for any other restaurant to refuse to hire you because you sued a former employer, but people talk and it does happen.

Any of these options are fine - it's whatever works best for you. Good luck!

posted by Phyllis Towzey  |  Jun 17, 2016 06:33 AM [EST]

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