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Mira! Si Mesara en Santa Fe, NM y necisita que apprendar Los derechos de los immigrantes, Contacto SOMOS UN PUEBLO UNIDO 505-474-7832 somosunpueblounido.org.
HAPPY NEW YEAR!
Looking forward to updating the blog this year with new research. Heard this quote recently, If you think you are too small to make a difference, try sleeping with a mosquito. Dali Lama. Remember, every time you stand up for yourself, you are standing up for everyone in your community. Make a difference in 2012!
“I hope by pursuing (the claims) on a federal level it might encourage local proprietors to reconsider their illegal tip-pooling practices.” Gina Darnell, Il Piatto waitress. – Courtesy Photo
Posted: Monday, June 06, 2011 – 5/14/11
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One policy Darnell objected to was Il Piatto’s practice of collecting $1 per waiter per shift for an “error pool” she said was used to offset the cost of potential losses such as broken dishes and unpaid dinner tabs.
She also challenged the legality of being asked to work training shifts and wine-education events where she was neither tipped nor paid a minimum wage.
The state agency decided in Darnell’s favor in relation to the above complaints.
The department did not address Darnell’s other complaint that Il Piatto violated federal laws regarding tipped employees by requiring her to give a portion of her tips each day to a dishwasher paid more than minimum wage.
Federal law allows employees who receive tips to be paid far less than the minimum wage — $2.13 per hour — but specific rules govern the conditions under which employers can use the “tip credit” to justify paying their employees less than minimum wage.
Darnell, who was seeking about $700 for damages in the case, said she was disappointed in the outcome.
“I feel there are a lot of employers in this town abusing the tip credit and getting away with it,” she said. Darnell said she next plans to file a complaint with federal authorities. “Not for money purposes,” she said, but to make a point.
“I hope by pursuing it on the federal level it might encourage local proprietors to reconsider their illegal tip-pooling practices. I’m just trying to plant a seed and hoping people will pick this up like a football and just go with it,” she said. “I really hope the proprietors will wake up to what the laws are. I’m only asking them to follow the law.”
Neither Il Piatto owner Matt Yohalem nor his wife, Honey Yohalem, who manages the restaurant, responded to messages seeking comment for this story.
The New Mexican asked management at two other Santa Fe eateries — The Blue Corn Cafe and Brewery’s downtown location and La Boca, directly across the street from Il Piatto — about their practices. Both restaurants said their tipped employees share tips with other tipped employees, such as busers and bartenders, but not kitchen staff. Neither restaurant requires wait staff to pay for broken dishes or unpaid tabs.
Darnell authors a blog — www.wiserwaitress.com — that focuses on the rights of wait staff.
Contact Phaedra Haywood at 986-3068 or phaywood@sfnewmexican.com.
Oct 27, 2011
Its always worth standing up for your rights. I filed for unemployment against this employer which was initially denied. After the state confirmed the illegal deduction, I was able to successfully appeal my claim and won. I was awarded 6 weeks of unemployment for the time I spent looking for work. Although I lost my case trying to enforce the FLSA through the Federal Dept of labor, I gained significant insight on how these agencies work. The employer simply reclassified the dishwasher as a buss person. The sloppy, investigation led by the Federal Dept of labor revealed to me that the only way to ensure the FLSA can truly be enforced is to hire an attorney and advocate for stronger protection from the agencies that are created to enforce labor laws. On a final note, this employer did try to overturn the appeal which was denied by the Labor Secretary.
RESTAURANT WORKERS FLASHMOB DANCE FOR JUSTICE!
Windows of the World Workers Stay United
by Dania Rajendra for the Brooklyn Rail
On Sunday, June 26, dozens of restaurant workers in tall paper toques and flimsy plastic aprons charged into the Taste of Chicago. Despite their get up and a smattering of signs, they didn’t really garner attention until they broke into an original choreographed dance, singing their own words to the Black Eyed Peas version of “The Time of My Life”: “We’re serving the meals of our lives / And we never worked so hard before / And we swear, this is true / And we owe it all to food…We’re! Tired! Of! Making! Low Wages! We’re telling you.” (Of course it’s on YouTube.)
Members and staff of the Restaurant Opportunities Center sung, spun, and shimmied in the hot Chicago sunshine—but the Federal minimum wage for tipped workers hasn’t moved since 1991. According to the U.S. Department of Labor, restaurant workers in 10 states still make that amount, $2.13 an hour, and workers in eight more make under $3.00. In New York City, ROC’s birthplace and the country’s most “foodie” American city, workers make $5.00 plus tips. In all states, employers are obligated to pay workers when their tips, combined with the base wage, don’t bring them to the national minimum of $7.25 an hour. Compliance, advocates say, is uneven at best. ROC research has found nationwide and industry-wide problems with stolen wages, uncompensated injuries, and racial discrimination.
In February, Representative Donna Edwards (4th District of Maryland) introduced the WAGES Act (H.R. 631) which would move the tipped minimum from $2.13 to $5.50 over two years, then peg it at 70 percent of the minimum wage. But the National Restaurant Association, which noted in February that “restaurant industry sales are expected to reach a record $604 billion this year,” opposes the bill. That’s why ROC brought their roving, musical awareness-raising flash dance mob, and its stationary follow up, the Restaurant Worker Olympics, to Chicago, home of the NRA. But I-can’t-dance theatrics are just part of ROC’s serious push to revolutionize the conditions of the restaurant workers. It’s been a long road since 9/11, when ROC’s precursor organization was started by Local 100 of the Hotel Employees and Restaurant Employees union (now UNITE HERE) to serve the surviving workers at Windows on the World, who were members of Local 100 until 9/11 destroyed their workplace and ended their employment (thus terminating their union membership). They were the lucky ones: 73 Windows on the World workers died in the disaster.
In the 10 years since 9/11, ROC has grown from a workers center serving New York restaurant employees to a national organization dedicated to improving conditions in the entire restaurant industry. It’s their work, said ROC-United Co-director Saru Jayaraman, to “build a legacy in their name.” Jayaraman pointed out that the restaurant industry is the largest and fastest-growing in the country, but restaurant workers “make the lowest wages in the United States. When our industry changes, it will change the whole economy.” But, she added, “We have a long way to go.”
Fekkak Mamdouh, who worked at Windows on the World until it was destroyed then served as a Red Cross caseworker in the 9/11 aftermath, has co-directed ROC with Jayaraman from the very beginning. “Before 9/11, I didn’t think there was discrimination here. I thought other people were lazy,” he said. Mamdouh is from Morocco and a Muslim, and he added that the tragedy and the subsequent racial profiling by the government, the media, and by people around him highlighted the realities of race and class in the U.S. “I could see the obstacles,” and ROC, he said, was a way of “doing something positive.
Many of Mamdouh’s Windows coworkers have fallen away since then, but some original activists remain. One, Shailesh Sreshtra, comprised one half of the New York team competing in the Busser’s Maze, the first event of the first-ever Restaurant Worker Olympics, which followed the flash mob that sunny Sunday in Chicago. Sresthra, who said he has been a server for 13 years, loped over overturned milk crates to bring New York the bronze. He emigrated from Nepal and later explained that his home country won a flat, nationwide service charge that goes directly to service workers this year, after a two-decade-long fight.
ROC activists say their national expansion will help win exactly that type of widespread change. The group now has chapters in Chicago, Los Angeles, Miami, Michigan, New Orleans, Philadelphia, and Washington D.C., in addition to New York. Industry-wide changes they’re pushing for include paid time off for sick workers. A bill guaranteeing just that to New York workers garnered support in the City Council until Speaker Christine Quinn squashed it in October.
Each ROC affiliate follows the New York model of organizing based on policy advocacy, lawsuits, and training, but each affiliate can add their own concerns. For example, in New Orleans, activists are hoping to win passage of a bill in their City Council that would give workers a seven-day grace period to reclaim their jobs once a mandatory evacuation order ends. “Mass transit is good for getting people out of the city” before a hurricane, explained ROC-New Orleans advisory board member Darrin Browder,”but [it’s] not good at getting them back in.” He added that restaurant workers often have to get jobs wherever they find themselves, to finance their return to New Orleans. Access to healthy food is a big issue for restaurant workers and their communities in nearly every city where ROC has a chapter, and especially so in Detroit, where the local chapter is local legislation on the issue. They’re also the next chapter to add a Colors, the ROC-started, worker-owned cooperative restaurant that serves locally sourced, sustainably grown food. The restaurant is scheduled to open September 12.
In New York, Colors is in talks with the USDA to host a farmer’s market for food stamp recipients, which is designed to address the limited access low-income residents face all over the country, Jayaraman said. Colors hosts some classes offered by the Culinary Arts program at Brooklyn’s Kingsborough Community College, which in turn, offers credit for those ROC activists looking to parlay their ROC training into a college degree. In September, Colors will open for lunch, cooked and served by students supervised by ROC and KCC faculty, and at new, lower prices, “so our own worker-owners [can] bring their families to eat there,” Jayaraman said. After Detroit, New Orleans is scheduled to open the third location, in the Lower Ninth Ward.
The national expansion has meant changes for an organization that started out focused solely on New York City, Jayaraman said. “It’s made us even more diverse—we definitely don’t consider ourselves an immigrant organization anymore. In New York, 70 percent of restaurant workers are male, but nationally the majority are female.” Jayaraman said the organization receives an email or phone call a week from restaurant workers in locations where there isn’t a chapter.
Meanwhile, in Chicago, restaurant workers from around the country suspended their solidarity for a little friendly competition. After the bussers’ race (Michigan won), back-of-the-house folks duked it out over cupcakes. ROC-Chicago activist Mo Williams, owner of dessert catering company Mo Sweets, baked up eight different batches of cupcakes and plastic bags full of frosting, based on recipes sent in by the teams in advance. Each team of two decorated five cupcakes in five minutes, then presented it to a panel of judges, who considered presentation, taste, and concept.
Chicago took the gold for including locally-brewed stout in the batter, “representing our city’s working class,” according to contestant Riley Henderson. The New York team, which didn’t place, put espresso in the frosting and a stuffed rat atop one cupcake, in homage to the inflatable “union rat” often seen on the city’s sidewalk. Williams had also baked mini versions of all eight entries—enough for most onlookers. After the winners were announced, the smack-talking faded into the quiet of chewing and the camaraderie returned. ROC activists reprised their flash mob song and dance for the judges, then launched into the organization’s slogan (“We are power. We are strong. Who are we? ROC-United!)” in language after language—English, Arabic, French, Kreyol, Spanish, Tamil, Chinese, and more, each activist stepping into the circle to lead the chant in another language, the group making an impressive effort to repeat unfamiliar syllables.
In this one early moment, full of sugar and sunshine, this tiny representation of the nation’s 10.3 million restaurant workers seemed ready to, in the words of a Miami restaurant worker, “reclaim our rights as people.”
ROC-Michigan’s, Good Food, Good Jobs, Campaign reminds us that our fight is about the right to feed our families good healthy food. 2 months ago
January 26, 2011 — DWU Member Christine Lewis on the Colbert Report
| The Colbert Report | Mon – Thurs 11:30pm / 10:30c |
| Christine Yvette Lewis | |
| www.colbertnation.com | |
media
“Womens work is real work”
Please watch the video and be inspired.
August 15, 2011
The most important single task you can do for yourself in this industry is to KEEP TRACK of your Tips. Everyday you work, write down the total amount of tips you have made. Do it in your smart phone, in a pocket calander, whatever, JUST DO IT. Then when you recieve your pay check, make sure the total amount of tips your employer is reporting matches your record. DO it, Do it , Do it. Get in the habit. It is your money and you should not have to pay taxes on money you haven’t earned. And when you do this on a regular basis, you may start to see how you might end up owing money at the end of the year. You may not earn enough in a cash wage to pay your payroll and income taxes. Better to know now, then a rude suprise at the end of the year and a chance to save some of your tips for the taxes you may owe.
August 12, 2011
Today wraps up the last free day I have to devote myself to writing on this blog. I will continue to answer inquires and update some of the state regulations, but will be too busy for a while to do any extensive writing. As I struggled to enter the final blog entries today, you may find some rough unedited reading, but my heart and soul was there and I truly hope any information you find here may help improve your working lives and promote respectability in this profession. Good luck to everyone!
August 2nd, 2011
I am not a lawyer or always a polished writer. I am just a full time student,Full time coffee drinker, part time waitress/ part time blogger who is trying to deliver a few more crucial entries before the summer break ends. I hope my recent research and experiences will benefit some of you who work in the industry. As a aspiring social worker, I will do my best to provide information that can help families, workers, business owners and anyone interested gain access to resources that can help improve working conditions and strengthen good business practices. Enjoy the ride!
*Please note that “Whose Your Daddy?” and Wiserwaitress walks the talk” are both being edited and updated. They will be released later this week.
Editing Party June 2009
I have been unable to get the U.S. Department of Labor to answer a question I have about federal law. If any of you have the time to write them an email or letter asking them to answer this question I would truly apprectiate it. Every time I write them, they just send me a generic reply, no answer.
My question is, what percentage of the tips a waitress receives from customers is the waitress legally entitled to retain as her own?
Federal laws state that all tips received by the employee are to be retained by the employee which led me to believe that a waitress who receives tips is legally entitled to retain all the tips she has been given. However, federal laws go on to state that nothing in this subsection shall be construed to prohibit the pooling of tips among employees who customarily and regularly receive tips.
The U.S. Department of Labor has sent me letters and emails explaining that this federal law permits an employer to require that a waitress contribute her tips to a pool that shares her tips among workers who customarily and regularly receive tips, such as busboys, bartenders, hostesses and other workers who provide service to the customer. The problem is, while they have explained that the waitress can be required to share part of her tips with other workers, they refuse to explain how much the waitress is legally entitle to retain as her own.
From the information they have sent me, apparently the law doesn’t mean that all tips received by a waitress are to be retained by the waitress. Instead, they seem to be suggesting that when federal laws state that all tips received by the employee are to be retained by the employee, what it actually means is that all tips received by the employees who served the customer in some way are to be retained by the employees who served the customer in some way.
According to the U.S. Department of Labor, busboys, bartenders and others who normally provide service to the customers are eligible to be included in a tip pool that shares the tips restaurant workers receive from customers. However, while the DOL has explained that certain types of employees are eligible to share in such a tip pool, they blatantly refuse to explain what percentage of the tips a waitress receives the waitress is eligible to retain from the pool. You would think that the waitress would be entitled to a bigger share than the busboy or the bartender since the tips were most likely handed to her via cash or via the bill.
To put it more simply, while the DOL has explained that, besides the waitress, other types of employees are entitled to a portion of the tips a waitress receives, they refuse to explain what percentage each types of employee is legally entitled to retain as their own.
If the DOL is going to hold an opinion which suggests that certain types of employees are entitled to a portion of the tips a waitress receives, then they should know what portion each is entitled to. Don’t you think so?
There opinion seems to suggest that when federal laws state that nothing in this subsection shall be construed to prohibit the pooling of tips among employees who customarily and reguarly receive tips, what it is stating is that all employees who customarily and regularly have receive tips from a tip pool in the past are entitled to a share of the tips a waitress receives. If this is the case, then where is the law that explains what portion each type of employee is entitled to?
It is my opinion that federal laws are not suggesting that certain types of employees are eligible to be included in a tip pool. To me, it should be up to the customer to decide who his tip belongs to. Instead, I believe the law is simply explaining that an employee who customarily and regularly receives tips, such as a waitress, cannot be prohibited from sharing any portion she chooses with any other workers she chooses to share her tips with.
To me, the waitress should be the one deciding who can share in her tips, NOT the U.S. Deparment of Labor. I don’t think customers are giving the U.S. Department of Labor tips so that they can decide who the customer’s tip belongs to.
Sorry for such a long post, but I have been trying to get this question answered for over 10 years.
Federal laws state that all tips received by the employee are to be retained by the employee. 29 USC, section 203(m).
In the case of a waiter, what percentage of the tips customers give him constitute “all tips received”?
This same law goes on to state that nothing in this subsection shall be construed to prohibit the pooling of tips among employees who customarily and regularly receive tips. The Department of Labor is currently interpreting this part of the law as enumerated who is eligible to share in the tips waiter’s receive. According to the DOL, employees who customarily and regularly receive tips, such as waiters, waitresses, bellhops, counter personnel (who serve customers), busboys/girls and service bartenders are eligible to share in the tips given a waiter, and as such, a tip pool which distributes tips to all these workers cannot be prohibited.
If, as DOL suggests, federal laws are explaining that other types of workers are eligible for a share of the waiter’s tips, then what percentage is the waiter legally entitled to? What percentage of the tips a waiter receives would the waiter have a legal right to “retain all of”, as his own?
Likewise, since busboys have been classified by the DOL as a type of employee who is eligible to share in the tips a waiter receives. What percentage of the waiter’s tips constitues “all the tips” the busboys is legally entitled to retain as his own?
Now please explain what percentage the bartender is entitled to retain all of, as his own?
How about back of the house workers such as cooks and dishwashers? Some could say they to “serve customers”.
Can you explain why a bellhop would be entitled to a share of the tips waiters and other restaurant employees receive?
The reason I ask is,
If an employee has no idea of what constitutes “all the tips he has received”, then how can he retain all the tips he has received?
Isn’t the intent of section 203(m) to insure that an employee who receives tips retains all the tips?
The Department of Labor’s suggestion that section 203(m) is enumerating who is eligible to share in the tips a waiter receives is actually preventing employees who receives tips from retaining all the tips, due to the fact that the Department of Labor’s interpretation is silent on what percentage each type of employee is legally entitled to retain all of.
The Department of Labor’s current interpretation of section 203(m) is nullifying and contravening the intend of the law, due to the fact that an employee who receives tips cannot retain all his tips when the Department of Labor refuses to explain what percentage he is legally entitled to retain as his own.
For instance, a waiter cannot retain all his tips when the Department of labor is holding an opinion, which most courts agree with, that other types of employees are eligible for a share of the tips customers have chosen to give him. Likewise the busboy cannot retain all his tips due to the fact that both the Department of Labor and the courts refuse to define what portion of the wiater’s tips the busboy is authorized to retain as his own.
I believe the problem stems from the fact that section 203(m) is being incorrectly interpreted. While the law states that nothing in this subsection shall be construed to prohibit the pooling of tips among emplyees who customarily and regularly receive tips, I don’t believe that the law is attempting to suggest that other employees are eligle for a share of the tips an employee personally receives from customers. The preceding part of this law states that ALL tips received by the employee are to RETAINED by the employee. Which brings me to an ulterior interpretation that makes much more sense and doesn’t nullify and contravene the intent of the law.
The word “retain” is defined as to keep in one’s possession or to keep for one’s use. If the word retain were misconstrued, in section 203(m), as an employee must keep all tips he has received in his possession, many workers might errantly be lead to believe that the law prohibits them from sharing a portion of their tips with other workers. Workers in the service industry, for decades, have customarily and regularly shared a portion of their tips with co-workers who assist them in their duties.
Instead of interpreting section 203(m) as a law that is enumerating types of employees eligible to share in any tip given a worker, it makes much more sense that the law is simply explaining that the word “retain” should be interpreted as to keep for one’s use. This way employees won’t miscontrue section 203(m) and think that the law prohibits them from sharing a portion of their tips with other workers, as they have customarily and regularly done in the past.
What I believe the law is stating, is that all tips received by an employee are to be retained for the employee’s use.
CFR 531.52 has substantiated this interpretation by stating that when applying the provision of section 203(m) only tips received as money belonging to an employee which “he may use as he chooses”…..may be counted.
The U.S. Department of Labor must correct their errant opinion which is contravening the requirements of section 203(m). Their current opinions concerning tips and tip pools is preventing employees from actually retaining all the tips they have received.
If the law is properly interpreted, the waiter would know what tips he is entitled to retain as his own? And it makes sense. A waiter is entitled to retain all the tips customers present him. That’s the tips he has received. Likewise, a busboy is entitled to retain all the tips waiters share with him along with all the tips customers might present him directly. Likewise, a bartender, or for that matter, a bellhop and even a counter server would be entitled to retain all the tips waiters, or others, might share with them along with the tips customers present them directly, however, I don’t see a waiter sharing his tips with a bellhop.
With this interpretation, each and every employee is aware of what “all the tips he has received” actually means, and as such, section 203(m) will act to protect such employees.
The service charge is not a tip and the owners may do what they want with the service charge. You are paid a commission when you recieve money from the service charge. If a person at the party, gives you a cash tip, that is considered the property of the server. So Yes, they could impose a $1000 service charge and disburse whatever amount they want among the staff- the only criteria they need to meet is the minimum wage. some states such as washington have laws that require that patrons be informed the service charge is not a gratiuty, but many states do not have these laws.
Quick question,
I work at a restaurant the during a private party they take money to tip out the house from the “service charge.” lately they told people that the most they can make no matter what the service charge is, 35 dollars an hour. Just wondering If anyone can help me. Who do I call or contact to fix this if it can even be fixed?
State Law only enforces state minimum wage laws. They do not (at least in NM) enforce the FLSA Fair labor standard ACT. Yes While its true that the state minimum wage is the one the employer must pay, it will not be enforced if you are trying to claim the full min wage under FLSA. (See whose your Daddy for more info)
Although there is a Federal Minimum Wage for Tipped Employees – it seems state minimum wage laws trump this. If you are confused by this conflict, you’re not alone; I am too. For instance, I live in New Hampshire where the minimum wage for regular employees is $7.25 and the minimum wage for tipped employees is not to be less than 45% of that amount. Soooo… it doesn’t matter what the Feds dictate. I earn $3.27 plus tips per hour. I believe (I could be wrong) most other states are far above the $2.13/hr. mark. Seems like it would be time consuming to research. Keep up the great work – I love the blog!