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saucey
(@saucey)
Advanced Member

Good Day Y'all...I have been a waitress at a restaurant in Frederiksted for 6 months, and recently quit. I quit because I worked for this new restaurant, with a promise of being paid minimum wage for tipped employee once they got grounded. 6 months went by, and still no pay. What should I do? Is it legal or likely in this economy that I would ever get paid a minimum of a measly $2.13 per hour for waitressing? Should I just forget this employer, or should I consider going to IRB, DOL, and DLCA? I realize I may never get my fair pay, but is it okay to report such a scandalous and obvious act of disobedience of our US laws?

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Topic starter Posted : June 1, 2009 4:36 am
Yearasta
(@Yearasta)
Trusted Member

Kinda confused...are you not being paid...or are you still getting server pay when you were promised minimum wage?

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Posted : June 1, 2009 5:11 am
sail2wind
(@sail2wind)
Advanced Member

there has to be some labor laws, even in paradise. Colorado is $4.26 an hour plus tips, minimum wage is $7.26

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Posted : June 1, 2009 7:42 am
bethburnett70
(@bethburnett70)
Advanced Member

Saucy, do you mean that you were paid *NO* base pay at all and worked for tips only? If so, by all means, go ahead and report, if you want, but I don't know how likely it is that anyone can/will force the employer to pay.

A litle side note, you are also technically obligated to report and pay taxes on the tips you made while working.

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Posted : June 1, 2009 8:26 am
speee1dy
(@speee1dy)
Expert

it sounds like you were only paid your tips and no regular base pay? is that right. i would go to the labor department and file a complaint..
if you get no satisfaction call the labor department in florida and see what they can do but i would think that they would take this seriously here.
did you sign anything? was anything in writing. did you talk to the owners? what documentation do you have to support your claim?

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Posted : June 1, 2009 10:59 am
Edward
(@Edward)
Trusted Member

From US Department of Labor

Question: Is it legal for waiters and waitresses to be paid below the minimum wage?
Answer: According to the Fair Labor Standards Act, tipped employees are individuals engaged in occupations in which they customarily and regularly receive more than $30 a month in tips. The employer may consider tips as part of wages, but the employer must pay at least $2.13 an hour in direct wages.

More at http://www.dol.gov/wb/faq26.htm

Edward

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Posted : June 1, 2009 11:39 am
saucey
(@saucey)
Advanced Member

The only income I received were tips. I can also state that I was not the only one treated this way. Regardless of a promise, minimum wage for hours worked should be paid, yes?
Does anyone know of any other restaurants doing business like this?

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Topic starter Posted : June 1, 2009 1:47 pm
dntw8up
(@dntw8up)
Trusted Member

Since you did this for six months rather than bringing it to the attention of authorities after your first pay check, I would be concerned that the authorities might see it as at least tacit agreement by you to this illegal payment situation. I would therefore keep my participation in this payment situation confidential and move on to other employment.

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Posted : June 1, 2009 2:05 pm
Edward
(@Edward)
Trusted Member

There may be some truth to the previous post. But there is another perspective.

If the employer violated the law in your case, chances are he did it - and is doing it or will do it - to others.

You might consider making a detailed description, include any contemporaneous (materials created at the time), and sending it to the US Department of Labor.

There is a statute of limitations, but you are well within the time frame. Besides, President Obama just signed into law the Lilly Ledbetter Fair Pay Act. There is a heightened awareness regarding these matters over the previous Administration. USVI is not exempt from either the Fair Labor Standards Act or the Fair Pay Act.

Sorry to disagree, dntw8up, but as a former prosecutor, I can tell you that a victim is not able to give "tacit agreement...to this illegal payment situation."

It 's up to you, Saucey. Your choice. Take it or fight back - not only for yourself but for other victims, as well.

Anyway, that's my two cents. Good luck,

Edward

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Posted : June 1, 2009 2:30 pm
islandtyme
(@islandtyme)
Trusted Member

When I was a server paid $2.13 plus tips, I regularly did NOT get a check........Why, I made more in tips than my hrly.
So my question is, did you receive a pay stub? Did it break down the tips claimed VS $2.13??
Or did you just show up night after night for just the tips, did NOT report them & received NO pay stub??
This needs to be reported if you just worked for tips.....however you will also now be responsible for taxes on those tips if they weren't reported. Even if you decide not to pursue this matter personally & you feel this employer is in fact breaking the law, then turn them in anonymously. 😉

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Posted : June 1, 2009 2:58 pm
dntw8up
(@dntw8up)
Trusted Member

"Sorry to disagree, dntw8up, but as a former prosecutor, I can tell you that a victim is not able to give "tacit agreement...to this illegal payment situation.""

I don't mind if you or anyone else disagrees with me; differing opinions keeps life interesting! However, it is a hard sell to characterize the server as a "victim" given that the pay arrangement was apparently satisfactory for six months.

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Posted : June 1, 2009 3:36 pm
DUN
 DUN
(@DUN)
Trusted Member

Why did you wait 6months??????
Now,nay tippers,could you live on $2.13/hr.??
Lets` not have that conversation again...

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Posted : June 1, 2009 11:57 pm
saucey
(@saucey)
Advanced Member

Why did I wait for 6 months?

Have you any idea how hard it is to get a job in F'sted, where I live?

Well, it's not easy, and WAPA wants to get paid...

And it's even harder to hold a job in the restaurant biz if one does not participate in the coke/crack world!!

I had enough, especially when it came to making excuses for the cook, as to why the restaurant was all of a sudden closed again...I couldn't state the truth, so I had to lie to regular customers in order to keep the place open, and keep me in a position to pay my bills.

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Topic starter Posted : June 2, 2009 1:13 am
Betty
(@Betty)
Trusted Member

Well its not like sunny isle or c'sted are that far away, I think thats why people are confused why you waited 6 months. And its not like your only option is to wait tables.

But yes you can definitely sue or file a complaint and get some money, BUT think long and hard about being able to find another job. This is a small island and word gets around very quickly. What you get in damages will not be worth it in the long run. In my opinion you waited too long as well. It doesn't make it look like you were hurting.

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Posted : June 2, 2009 1:52 am
Edward
(@Edward)
Trusted Member

islandtyme has a good point. If you feel uncomfortable on a small island about blowing the whistle, you can do it anonymously.

As to use of the term "victim," this is how the law views persons in Saucey's situation. Ever since the Norris LaGuardia Act of 1932, US labor law has recognized the inherent disparity of power in the employer-employee relationship. Subsequent law, Taft-Hartley excepted, has attempted to even the playing field, most recently the Lilly Ledbetter Fair Pay Act.

Going along with the arrangement for six months doesn't mean that Saucey had any choice in the matter. Saucey was relying on "a promise of being paid minimum wage for tipped employee once they got grounded." The employer may or may not have been acting in good faith; only an objective investigation can tell.

Are persons in Saucey's situation "victims"? If it looks like a duck, and it walks like a duck, and it quacks like a duck, it's a duck." Looks like a victim to me.

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Posted : June 2, 2009 7:17 am
saucey
(@saucey)
Advanced Member

BUT think long and hard about being able to find another job. This is a small island and word gets around very quickly.

I "hear" the above comment, but I don't understand it. Why does the victim of an offense have to carry the burden? Why not find out who the restaurant refusing to pay their employees is, and hold them responsible through an action of boycott? To me, the advice given above validates the STX adage "things will never change". The "word that gets around very quickly" should be in praise that someone took a stand, and that the community backs that person, not shuns that person for doing the right thing.

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Topic starter Posted : June 2, 2009 1:10 pm
Betty
(@Betty)
Trusted Member

I guess I say it because there are TWO sides to every story. I don't know if yours is the truth or the restaurant. Like I said before you story sounds suspious/odd. How do we know which one is right. So if yours is not correct for whatever reason I would tread carefully. If you know you are on the right then get off the message board and get it taken care of, you've already waited way too long. I would never tolerate missing one paycheck unless I really knew that person was good for it the following paycheck.

I wouldn't be complaining about island time when you are so obviously on it....

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Posted : June 2, 2009 2:12 pm
debsst
(@debsst)
Advanced Member

On the islands it is a common practice. Restaurant Owners get a break on the wage, If the wage they are paying + tips, which are declared equal to minimum wage or above, they are safe. Most restaurants try to pay enough of a wage to cover themselves and to cover their employees taxes on their tips, resulting in no paycheck. You should of course be getting a pay stub that reflects this. If you were not getting a negative paycheck, then I would just move on. It is standard here. There is nothing you can do. If you are looking for minimum wage, + tips I would suggest moving on to a resort or hotel chain. They are much better about giving you a paycheck with minimum wage, and some offer benefits as well. Good Luck!

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Posted : June 2, 2009 2:27 pm
limetime2
(@limetime2)
Advanced Member

My understanding of the law is that a tipped employee is a person who gets more than $30.00 in tips per month. The employer of a tipped employee must pay a minimum of $2.13 per hour for that tipped employee regardless of how much money is made in tips during the shift. If an employee makes a total (tips plus $2.13 per hour) during a pay period less than minimum wage for the hours worked, then the employer is obligated to pay the difference so that the total equals minimum wage (7 something?) for hours worked. That is how I understand the law. I may be wrong.

It sounds to me like Saucy took a risk. A new restaurant trying to get its footing in a tough market. I'm sure if the restaurant had done well and tips had been plentiful, this thread would not have been started. None of us know the circumstances. She probably hoped it would get better, ... wanted to be part of 'the team', enjoyed the work...or liked her co-workers.. and therefore kept hanging on. I'm sure, if its the restaurant I suspect... there were some nights when tips were good. Restaurant owners should not be able to operate outside of the law, but, in the end we are all responsible for our actions and choosing to keep working until she finally got fed up (or the restaurant closed) was her choice. We can only be abused by employers if we allow it to happen... and sometimes we allow it in order to be able to pay those bills... but hopefully we do it while looking for something better. The offending owner/manager should be required to do what is legally required... and total tips per pay period should have to have been reported. I don't work in the industry but I know that much. You can't have your cake and eat it too though... if you are cheating by not properly reporting tips... you can expect your management will do likewise. A lot of games are played with this I'm sure. If you really think you are due something... I'd say take it up with DOL, but be prepared to show tips earned per pay period were less than minimum wage.

Yes, its a small island.. but really... we allow so many injustices to become acceptable on this island that it sickens me. What's right is right. What's legal is legal. We need to quit accepting violence and abuse and criminal activity as 'understandable' whether its the post office, the government, our employers, or our friends. - oh yeah, she was raped but she enticed him by the way she dressed - oh yeah, he was beaten up badly but why was he out so late and in that place - oh yeah, the child came to school with a black eye but he is always causing trouble and his parents didn't mean to - oh hey, don't report your bad boss because maybe no one else will hire you... and so on. That is BS.

Too many people are too afraid of the repurcussions (sp) to speak out against bad people - If someone is breaking the law, it should be reported. Use the legal system (not this forum) to do so. This forum just causes crazy people like me to come out of the woodwork and rant. 🙂

Ok.. rant over. sorry. 🙂

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Posted : June 2, 2009 3:38 pm
Betty
(@Betty)
Trusted Member

The flip side of that is that owners are terrified of firing anyone for fear of getting sued. I personally think employees hold a little too much power. This part of the reason service is so bad across the board here, not just in restaurants. I frankly see both sides, but see employees take advantage of the small business owner like crazy here.

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Posted : June 2, 2009 7:55 pm
islandtyme
(@islandtyme)
Trusted Member

ITA with the employees have too much power here!
My gosh it takes an act of congress and a green light from God just about to terminate an employee here.

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Posted : June 2, 2009 8:48 pm
dntw8up
(@dntw8up)
Trusted Member

I have heard a number of small business owners here complain that it is very difficult to fire an employee, even with cause. For this and other reasons I would never own a business here.

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Posted : June 2, 2009 8:52 pm
Ms Information
(@Ms_Information)
Advanced Member

I am not current on the law. When I owned a restaurant we were required to pay no more than current minimum wage in a combination of tips and hourly wage. We were required to file a minimum of 8% of all "charges" and 100% of all credit card tips. In other words we filed with the IRS in the employees name a minimum of 8% of gross sales.

Things might have changed over the years, but I do know that the employer and employee both have the responsibility to tell the government how much each is making. It sounds like someone might be violating the law in this case. My son in law owns restaurants and was recently audited. He needed to come up with some big (tip) bucks to satisfy uncle Sam.

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Posted : June 2, 2009 11:02 pm
saucey
(@saucey)
Advanced Member

Hmmm...guess it worked-out just fine...I heard on the news tonight that there is a major crack-down on tax fraud, evasion, and avoidance.

For those who may have questioned whether or not I declared tips...yes I did. I declared more than I was required to.

I bought my first home on tipped income, and hope to buy another here on STX.

The big sucky part about not getting paid is not getting the min wage with the Social Security acknowledged. I'll never be able to retire if I stay in this business!!! There will be nothing put aside for me by Gov't...

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Topic starter Posted : June 16, 2009 4:00 am
STXResident
(@STXResident)
Advanced Member

You can always pay into SS yourself.

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Posted : June 16, 2009 10:04 am
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