Can restaurant worker have minimum wage pay ?

[peterlee]

What is the name of your state (only U.S. law)? CA

One of my friends has worked in a restuarant for 3 monthes. He works from 10:30am to 10:30pm, which is 12 hours/day, sometimes 13 hours/day and 6 days/week. He is a wash-disher. The resturant owner offers him a bed free in a room. His monthly salary is $1600.00 and paid by half cash and half check. The average pay is $62.00 for 12hrs/day. He has a legal work authorization.

As the wash machine is just next to his room, he can not sleep well because co-workers use the machine after midnight all the time, much noise. He talked to the owner about it, but the owner said "If you can not tolerate this, you can quite." He just wants to know weather or not he can ask the owner to pay him back the overtime and minimun pay for the 3 months when he leaves the job ? If the owner refuses, how does he can do about it ? Thank you.What is the name of your state (only U.S. law)? CA

 

[CourtClerk]

He could always move out of the free room with a bed.... what's that worth in CA these days?

I don't believe you can be paid less than minimum wage as a dish washer in CA.

 

[pattytx]

Minimum wage applies; was he receiving this room as part of his compensation? If so, was he required to live there to retain his employment? There's a reason I'm asking.

 

[Zigner]

Per Federal AND California law, your friend should be receiving overtime pay. OT for anything over 8 hrs per day (CA Law) and also for anything over 40 hrs per week (Fed. Law). Of course, there's no "double-dipping" on the OT...

 

[pattytx]

Plus, although it's not inherently illegal to pay employes in cash, it IS illegal to not withhold taxes and report those wages on a W-2 and for UI purposes. Is that what is happening?

 

[peterlee]

Yes

I call him that he says yes, it is required by the restuarant to live there as part of a compensation where it is half a mile from the restaurant.

 

[pattytx]

OK, let me do some research on the housing issue and I'll get back to you. But I do have to say that requiring a dishwasher to live in a certain place, NOT on the workplace premises, makes no sense whatsoever. Are you sure about that? Something is fishy in Denmark.

Can you answer my question about the cash payments? Is the deducting taxes ONLY from the payments made by check?

 

[pattytx]

See 10C here:
http://www.dir.ca.gov/IWC/IWCArticle4.pdf

Does the owner of the restaurant own the building where the employee has a room? Did he sign an agreement with the employer allowing the employer to use some of the "cost" of the room to offset minimum wage? Does he having his own bathroom and cooking facilities?

 

[peterlee]

Thank you

I can answer the following for him as far as I know per your questions

1. The place he lives in is not a regular room, like an entrace to the house and just next to the garage where the wash machine is, it is cement-ground, no carpet equiped, nothing to say rest room and shower. He has to enter into the house and share these with the co-worker. When people use the wash machine and drive their cars, they have to go through his sleeping area. When all these become quiet, it is about 2:00am, then he takes sleeping pill, but wake up about 6:00am when the sun rises. That is why he can not sleep good and feel exhuasted. When I went there, I found him tired, much weight loss. He complains about this to me.

2. He can not speak and read English, he says the owner asks him to sign a paper when he starts working there, the owner says it is regarding the workers compensation. He can not find other job at the age of 58, he says he has to tolerate this to keep the job.

3. He says he is paid by $800.00/month cash and a check less than $800.00
after tax and other deductions.

 

[pattytx]

1. OK, then, that is not "reasonable accommodations" according to the Wage Order I cited. Therefore, the employer cannot use any amount he might attribute to lodging to offset minimum wage.

2. His employer is required to provide him with a copy of anything he signed. He should ask him for it, and maybe you can translate it for him.

3. Illegal, plain and simple.

Here's the deal.

A. He must make at least minimum wage for all hours worked, and receive overtime pay per this FAQ: He can file a claim for unpaid wages with the Division of Labor Standards Enforcement. The form can be downloaded from the second link here, and is available in several languages.
http://www.dir.ca.gov/dlse/FAQ_Overtime.htm
http://www.dir.ca.gov/dlse/HowToFileWageClaim.htm

B. If he chooses to (or you can help him), this employer can be reported to the IRS and the Employment Development Dept for failure to withhold the appropriate taxes, failure to pay the employer taxes (relative to FICA/Medicare).

This employer is a crook of the first order and he is taking horrific advantage of your friend. The term "slave labor" normally offends me, because it is often used by posters here when it doesn't apply, but this situation comes awfully close to it. Yes, he could quit, but then he has nothing, so I understand his dilemma.

I understand he's afraid of being fired. There are probably attorneys who specialize in employment law who speak his language. If he is fired for filing a wage claim and/or reporting violations of law to the IRS and EDD, he has an excellent case for a wrongful termination lawsuit and, of course, he would be eligible for unemployment, although he'd have a fight on his hand to get the full amount he might be due, as the employer has understated his wage reporting to the state by half. Does he have any receipts or other documents showing what cash he received? Perhaps you can assist him in getting a consultation with an attorney before he goes ahead with any of these actions.

This employer should be put out of business, permanently.

 

[Warren Peace]

Hi! I am also for California so let me add my two cents on the issue.

Almost all employees are entitled to receive minimum wage, the only exceptions are outside salespersons, family of the employer, learners and such. As such, your friend, under the law should be paid both the minimum wage and also for his overtime.

Now, as to the room he is given to live in, he cannot be paid less than minimum wage and have that room be a compensation or even a reasonable accommodation. At the most, it can be considered a fringe benefit but even with that, he should still get paid the minimum wage.

I would suggest, even though he doesn't speak or read English, that he be referred to the California Department of Industrial Relations. Several wage claim forms (which he should file to recover his unpaid wages) are in several languages which he can understand. He can try to hire a lawyer but usually, it would be best to file a wage claim through the DIR first.

 

[pattytx]

Didn't I say all that already? Three DAYS ago? Plus, I gave them links to the actual DLSE sites; some not-official site is interesting reading, but not what the STATE actually says.