Employers in the United States, including restaurant owners, have lots of rules they must follow. There are federal labor laws, state labor laws, and in some places even local labor laws. When an employee feels as though their rights have been violated, they may seek to sue a restaurant employer in California.
The labor laws in California are more complex than federal laws and the state/local laws of most other jurisdictions. In addition, California’s labor laws are highly in an employee’s favor.
All workplaces in California are subject to inspection by the Division of Labor Standards Enforcement to ensure they are following all labor laws that apply to them. The inspectors find labor law violations in nearly every restaurant they inspect and the restaurant industry has higher monetary penalties assessed following inspection than almost any other industry.
Clocking-In at Your Shift Time
It is not uncommon for a waiter or waitress to be expected to wait to clock in for their shift until the restaurant is busy enough to need their help. This can mean that a waitress shows up for her shift at 11:00 am and ends up waiting to clock in for 30 minutes to an hour.
In California, however, it is illegal for a restaurant employer to prevent an employee from clocking-in at their scheduled shift time. There are also rules regulating what happens if a California restaurant sends an employee home early.
If an employee is sent home early after working anything less than half of the total scheduled hours, the employee is still entitled to pay as if they had worked half of the scheduled shift. However, the amount must be paid for no less than two hours and no more than 4 hours at the employee’s regular rate of pay. Employees must also be paid for time spent attending mandatory meetings that are held outside of their scheduled shift.
Not surprisingly, California also regulates split shifts, which is when an employee works two different shifts in the same day (with a gap in between the shifts). California law requires the time between the two shifts to be longer than a meal period (30 minutes), and the period between the two shifts may not be considered to count as a meal or rest period. The restaurants must also pay an employee making minimum wage a split shift premium, which is calculated as one hour’s pay. However, this does not apply if the employee already makes more than minimum wage.
Tips
Federal laws and other states allow “tipped minimums”, meaning that a restaurant employer is not required to pay their employees minimum wage, so long as the tips the employee receives will result in them taking home equal to or more than minimum wage.
That’s not the case in California. Any restaurant that employs 26 or more employees has to pay each of their employees no less than twelve dollars ($12.00) per hour, and a restaurant that employs 25 or fewer employees must pay each employee no less than eleven dollars ($11.00) per hour. Any tips received by the employees is on top of their hourly pay.
Meal Break Rules
California labor laws require an employer to offer an employee who works more than 5 hours per day an unpaid meal break of at least 30 minutes. More break rule details include:
- The meal period must be taken after the 3rd hour of work and before beginning a sixth hour of work. This is to prevent an employer from offering a meal break at a time that doesn’t necessarily make much sense, based on what is convenient to the employer that day. For example, an employer can’t offer a meal right at the start of a shift or right at the end of a shift because the restaurant is busier at the start or end of the employee’s shift.
- A meal break can be waived, but only if mutually agreed upon by the employee and the employer and if the shift is 6 hours or less.
- For shifts of 10 hours or more, two meal breaks must be offered and the second meal break can only be waived if it’s mutually agreed upon, if the first meal break was not waived, and if the shift is no more than 12 hours long.
If an employee is required to remain on call during their meal period, or if they’re not allowed to leave the restaurant, then the break will not count as a meal break.
Unlawful Termination
While no one likes being fired from a job, there are times when an employee is fired illegally. Such a situation is called wrongful termination and commonly happens because an employer fires an employee in violation of one or more terms of the contract of employment or in violation of a law.
Successfully suing a California restaurant employer is often more difficult than you might think because almost all restaurant employment is “at-will”. “At-will” employment means that there is no employment contract between the employee and the employer. So, in the same way that an employee is able to quit their job at any time for any reason, the employer is also entitled to fire you at any time for almost any reason.
Even in an “at-will” employment situation like most restaurant work, an employer can be sued for wrongful termination if an employee is fired for a discriminatory or retaliatory reason.
Unlawful Discrimination
An employee can sue a restaurant employer for discrimination if an employer takes adverse employment action against an employee for a discriminatory reason based on a protected class.
“Adverse employment action can be any of the following:
- Refusal to Hire an Otherwise Qualified Person
- Demotion
- Negative Evaluations
- Termination
As mentioned above, the adverse employment action must be based on a protected class, which are characteristics about a person that the Constitution does not allow discrimination based upon.
Protected classes include:
- Gender
- Race
- Skin Color
- National Origin
- Religion
- Disability
- Pregnancy
- Sexual Orientation
Without evidence that an employer’s adverse action was actually driven by discriminatory reasons, an employee will not succeed in suing the restaurant employer for unlawful discrimination.
Retaliation
It is illegal for an employer to take adverse employment action against you in retaliation against you for opposing unlawful practices, discrimination, or harassment. This can mean informing the employer that you believe they are engaging in unlawful practices, or complaining that another employee is doing so. An employer also cannot take adverse employment action against you for reporting workplace discrimination or harassment.
Retaliation might occur if an employee complains to an employer that they are being sexually harassed by a coworker. If the employer then begins treating the reporting employee poorly because they raised the concern, then that is retaliation.
Sexual Harassment
The term “sexual harassment” may be broader than most people realize. Sexual harassment can include:
- Unwanted sexual advances, either physical or verbal
- Inappropriate sexual jokes or discussion
- Offering employee benefits in exchange for sexual favors or threatening adverse employment action unless the employee agrees to sexual favors
We all know that sexual harassment is illegal, but it is also illegal for an employer to fail to prevent sexual harassment they are aware of. This means that an employer could be liable if an employee reports sexual harassment at work and the employernd your employer does nothing to stop the harassment.
Should I Contact an Attorney when Suing a Restaurant Employer in California?
If you think that your employer is violating any of the rules discussed above, It’s a good idea to consult with an experienced California business law attorney to discuss your options. An attorney in your area can assist you with legal action in court and provide you with representation.
