MANY restaurant workers receive very low pay, endure long work hours, are forced to share tips or repay them to the restaurant, live in overcrowded housing, and are afraid to complain because of their immigration status. The fact is that this kind of treatment by an employer is illegal and the restaurant worker has the right to complain and to collect unpaid wages, penalties, and interest for these violations.
Restaurant workers are entitled to be paid for every hour they work. Regardless of the workers residency status, the employer must pay the minimum wage of $8.00 per hour for all the time worked by the employee in the restaurant. If a restaurant doesn’t pay for all the hours worked, then it is guilty of unfair business practices in addition to violating wage laws.
Restaurant workers also have the right to be paid a premium of one and one-half times their hourly rate for working more than eight hours in a day. Some workers think that if they are only scheduled to work three days at ten hours each day, they haven’t earned the overtime premium because it was less than forty hours in a week. This is incorrect. In California, the overtime premium must be paid on all hours after eight in a day.
Sometimes the shift is a split shift, and the worker has a break in the middle of the day for several hours. The break cannot be a meal break or a ten-minute rest break to be a split shift. The restaurant must pay an extra hour at the minimum wage to the worker for each day that a split shift is worked.
Another practice of restaurants is to provide housing to workers. California law allows employers to take credit against wages for housing, but the amount of credit allowed is relatively small. Also, the worker must have decent housing and it cannot be a shared room, unless it is with a spouse. When workers are housed together in crowded conditions, it is a violation of many different laws in California.
Other illegal practices of restaurants include payment of wages in cash without pay stubs or deductions, failure to pay taxes and Social Security, failure to maintain workers compensation insurance, and treating employees as independent contractors.
It doesn’t matter if a worker does not have documentation to prove that he or she was not paid or not properly paid. Employers are required to keep records for three years of payroll and time cards. If the employer doesn’t have those records when a worker complains, the employer has committed yet another violation and will often lose the case.
A worker who proves these types of violations can collect from the restaurant all of the money that should have been paid plus interest on the money. In addition, penalties apply that must be paid to the worker who proves the violations. Therefore, even if the amount of wages claimed by the worker is small, the case can be worth much more because of the interest and penalties, making it worthwhile for an attorney to take the case.
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Bander Law Firm, LLP has been providing immigration services for over 15 years and has multilingual staff. Feel free to call Bander Law Firm, LLP at (213) 873-4333 to schedule your consultation regarding your legal concerns. Bander Law Firm provides a full range of legal services in the fields of Immigration, Mortgage Litigation, Personal Injury, Bankruptcy, Criminal and Removal Defense, Civil and Business Litigation, Wage and Hour Litigation and Class Action lawsuits.
Bander Law Firm, LLP Downtown office address: 1055 W. 7th Street, Suite 1950, Los Angeles, CA, 90017. Tel: (213) 873–4333 Fax: (213) 873–4334. San Gabriel Office address: 1045 E. Valley Blvd., #A215, San Gabriel, CA 91776. Email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it .
( Published January 6, 2009 in Asian Journal Los Angeles p. B3 )
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