Archive for tips

New Bill in Congress May Help Sick Workers

Posted in News Archive with tags , , , , , , , , , , , , on August 12, 2009 by pdxrwa

by William Pilgrim

In response to the hysteria generated by the novel influenza A (H1N1) virus, the Centers for Disease Control (CDC) urges workers, “if you have symptoms of influenza-like illness, stay home for 7 days after symptoms begin or until you have been symptom-free for 24 hours, whichever is longer.” The CDC’s advice to employers? Encourage sick employees to stay away from the workplace and to “provide flexible leave policies.”

Unfortunately, it is estimated that nearly 90 percent of restaurant workers are afforded no paid sick leave.  That may soon change if the Healthy Families Act, awaiting approval in the House and Senate, is finally passed.

In the United States alone, “40,617 confirmed and probable infections… have been identified by CDC and state and local public health departments,” since the first case of novel influenza A H1N1 was reported on April 17, 2009.  As October draws closer, ushering in the beginning of the flu season, more and more workers will be faced with the choice of missing work (and potentially being fired) or going to work sick.

Louie Chavez, 24, is a grill cook at a popular cafe in Northwest Portland.  In his six years in the restaurant industry, he has never received a paid sick day or health benefits. Though in the past he’s had the impression that benefits would come some day he says, “After a year of working where I do… I don’t expect to see them at all.”  Chavez says there have been “a few times when there was no one else and [he had] to suck it up and just go” to work while ill. He also had a past employer deny his request to leave after he began feeling nauseous at work.

Restaurant workers, who account for 10 percent of the workforce in Oregon, are among the most vulnerable to airborne illnesses.  As with other strains of flu, H1N1 is spread by person-to-person contact from coughing, sneezing, or contact with bodily fluids. Employees in this industry work in high-traffic areas with numerous points of contact with potentially infected individuals.  Sadly, these workers can least afford to take the CDC’s recommended time off.

A minimum wage worker, working a 33-hour work week, would lose $277 by staying home from work for the seven days suggested by the CDC.  Employees receiving tips lose even more.  Furthermore, few restaurant workers are offered employee health coverage or access to affordable healthcare.   At a time when many Americans are struggling financially, staying home from work because of influenza-like symptoms may not be an option.

There may be hope on the horizon.  So far the cities of San Francisco, Milwaukee, and Washington, D.C. have mandated employee sick leave.  State-level campaigns are developing nationwide.

San Francisco’s Proposition F, passed in 2006, allows any employee to begin accruing paid sick days after 90 calendar days of employment.  Eligible workers are awarded one hour for every 30 hours worked, with a cap of 40 hours for employees of small businesses, and 72 hours for employees of all other businesses. This leave can be accrued from year-to-year, though leave may not exceed the imposed caps.

Nationally, the Healthy Families Act was introduced in the House and Senate late last May by Rep. Rosa DeLauro [D-CT] and Senator Ted Kennedy [D-MA].  The bill is now awaiting approval in the Committee on Education and Labor, the Committees on Oversight and Government Reform, and House Administration.

The Healthy Families Act would require certain employers, at businesses employing 15 or more workers during each working day for 20 or more workweeks a year, to allow employees to accrue at least one hour of paid sick leave for every 30 hours worked, up to a maximum of 56 hours.  This sick leave will allow workers to seek medical attention for themselves, or for, ”a child, a parent, a spouse, or any other individual …whose close association with the employee is the equivalent of a family relationship.” The bill also allows employees to use paid sick leave for an absence resulting from domestic violence, sexual assault, or stalking.

The Healthy Families Act is a commendable first step in protecting workers.  Both full-time and part-time employees at the required businesses would be afforded sick leave in the current bill.  The bill also states that employees cannot be required to cover, or search for a replacement, for any sick leave they take.  The Healthy Families Act could also allow same-sex couples or LGBT families leave to care for their partners or children, since many of these families are not covered under traditional, privately offered plans.

According to calculations from the Institute for Women’s Policy Research (IWPR), by providing mandatory leave, “our national economy would experience a net savings of $1.8 billion a year due to increased productivity and reduced turnover.”  Providing sick leave to the more than 170,000 restaurant workers in Oregon would save $9 million a year.

Unfortunately, powerful anti-worker lobbies, like the Oregon Restaurant Association (ORA), have already come out against mandatory sick leave to employees.  The ORA believes that “flexible” work hours and schedules provided by restaurants best meet the needs of their employees, and that “many” restaurants offer a paid-time-off benefits structure that would be threatened by mandatory employee sick leave.

The Healthy Families Act is not a universal solution to public health worries or workers’ rights.  If the act passes in its current form, 30 percent of restaurant workers would still be ineligible for paid leave because their workplaces’ employ fewer than 15 workers.  However, the Healthy Families Act remains a bold initiative towards providing a greater number of food service workers with paid sick leave considering that, according to most estimates, only 10 to 20 percent of current restaurant workers are offered any paid leave.

With the flu season approaching, Congress and the nation cannot afford delay passage of the Healthy Families Act. Although many restaurant workers would still not be covered, it’s an important first step in ensuring that every worker can take care of themselves, or their loved ones, in the event of an illness.  And we can no longer accept a system that encourages low-income workers, especially those handling our food, to work sick in fear of lost wages or retaliation.

Wage & Tip Deductions

Posted in Pay & Wages, Wage & Tip Deductions with tags , , , , , , on October 14, 2008 by pdxrwa

An employer can legally deduct wages for the following, if authorized by law or the employee:

• taxes or garnishments (ex. social security, child support)

• union dues authorized by a collective bargaining agreement

• health insurance premiums

An employer cannot legally deduct wages (or tips) for the following:

• damages to employer property (ex. broken dishes, dropped food)

• register shortages

• accepting bad checks from customers

• walk-out customers

• uniforms, name tags, aprons, or tools required for the job

• laundry or cleaning of uniforms

• breakage or loss of tools, equipment or uniforms

If an employer deducts any amount from an employee’s pay, the employer must return that amount and pay the employee a penalty for each wrongful deduction. The penalty is equal to the amount of the deduction, or $200, whichever is greater.

The information and more is available by visiting these website and pages: BOLI, ORS 652.610(3), OAR 839-020-0020

Credit Card

Where tips are charged on a credit card and the employer must pay the credit card company a percentage on each sale, then the employer may pay the employee the tip, less that percentage (and only that percentage). The amount due the employee must be paid no later than the regular pay day and may not be held while the employer is awaiting reimbursement from the credit card company.

For more information, see the U.S. Department of Labor’s Fact Sheet on the Fair Labor Standards Act (FLSA): U.S. Department of Labor

Tip Pooling & “Tip Out”

Posted in Tip Pooling & "Tip Out" with tags , , , , , , , , , on October 12, 2008 by pdxrwa

Oregon law fails to address tips and tip pools and, therefore, BOLI does not enforce any standards regarding tips.  While the U.S. Department of Labor (DOL) establishes regulations regarding tips based on the federal Fair Labor Standards Act (FLSA), the DOL and the courts interpret the law differently.  Recent cases within the United States District Court for the District of Oregon have held that the FLSA does not regulate tips if the employer does not claim a tip credit (and Oregon prohibits employers taking a tip credit).  Employers are also free to make the tip pooling arrangements they dictate a condition of employment. As a result, even though the Department of Labor regulations grant restaurant workers control over their tips, those workers cannot currently assert those rights in Oregon courts.

The PRWA wants to hear from you about tips and tip pools. What has been your experience?  How much control did you have over your tips and tip outs?  Please write us with your story at contact@pdxrwa.org

Below are the standards set by the U.S. Department of Labor on the topic of tips.  Be aware, these interpretations are specific to DOL and the FLSA and are not meant to be confused for Oregon employment law.

Tips:

All tips that an employee receives are his or her property.  The law forbids any arrangement between the employer and the tipped employee whereby any part of the tip received becomes the property of the employer.

Tip Pools:

The requirement that an employee must retain all tips does not preclude a valid tip pooling or sharing arrangement among employees who customarily and regularly receive tips, such as waiters, waitresses, bellhops, counter personnel (who serve customers), busboys/girls and service bartenders.

Tip Pool Criteria:

  • consists of traditionally tipped employees: waiters, waitresses, servers, bartenders, counter personnel (who serve customers), busboys/girls, and hosts
  • cannot include owners or managers in the tip pool
  • cannot take more than a “customary and reasonable” amount of each employee’s tips (15% of tips or 2% of sales is customary and reasonable according to the Department of Labor)

When non-traditionally tipped employees are included in a tip pool, that is when the system has to be entirely voluntary—each employee can decide how much (if any) of her tips to share with anyone else.

Tip-Out Criteria:

  • must be entirely voluntary
  • each tipped employee must be able to decide on their own whether to tip out any non-tipped employee, and if so, how much
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