Food Service Worker Rights
Food Service Workers Rights
Your kitchen scars are badges of honor. There are the scars on your left hand from all that time as a prep cook. There are the scars on your right arm from your time as a fry cook. There is that scar on your left arm from the time you touched the inside of the oven getting that roasted lamb out of the oven. There is an old saying that, “If you can’t stand the heat, you ought to stay out of the kitchen.” But you are a line cook. So, that is not an option.
Food service workers are some of the most exploited workers in the State of California. Low wages, intolerable working conditions, and lack of health and safety measures all make it brutal for most. Fortunately, California labor laws protect the rights of food service workers.
Harassment and Discrimination in Food Service
Like all California employees, food service workers have the right to be free from illegal harassment, discrimination, retaliation, and wrongful termination. That means that food service employees can’t be harassed or discriminated against on the basis of some protected classification like age, disability, gender identity, race, religion, or sex. Food service workers also cannot be fired in retaliation for complaining about some illegal activity like health code violations, or health and safety violations.
Minimum Wage and Overtime Laws for California Food Service Workers
Food service employees are also protected by California’s wage and hour laws. That means that food service workers are entitled to accrue paid sick leave. They are also entitled to at least minimum wage for all hours that they work.
Tips do not count toward minimum wage in California. So, if you are a food service worker, and you are a part of a tip pool you must be paid at least the hourly minimum wage above, before any tips are added.
Meal and Rest Periods for Kitchen Staff
Food service workers are also entitled to meal and rest periods. Food service workers are entitled to a paid ten-minute break, where they are relieved of all duties for every four hours they work. The ten-minute break must be as near to the middle of the four-hour period as possible. If an employer fails to provide an employee with a ten-minute break, then that employee is entitled to one additional hour of premium pay per rest period they miss. So, for example, if you are working somewhere and it is so busy you cannot take a break, or they have you clock in, and then put you on a break immediately, they are likely violating the law, and you could be entitled to one additional hour of premium pay per day you work.
Imagine another hour of pay for every day you work. That can add up quickly. And it gets even better. Employers must also provide employees with an unpaid 30-minute meal period for every 5 hours they work. So, say you clock in at 4:00 PM, and you work until 11:00, you could expect to get a meal period around 8:00 PM. But what if my boss says, “We’re too busy.”? Well, then you are probably entitled to another hour of premium pay per meal period you miss. So, if you employer makes you take your ten, and then your thirty, and then makes you work for 6 hours, you are entitled to another 2 hours of premium pay at your regular hourly rate. Pretty cool, eh?
No tip dips.
Under California law, your employer is not permitted to share in any such tips left for employees or make deductions from an employee's wages because of those tips. Tips are not considered wages and are not included in the employee's regular rate when calculating overtime. An employer and its "agents" are not permitted to share in any tips left for employees or to make deductions from an employee's wages because of those tips.
Mandatory tip pooling among employees is permitted. Historically, in the restaurant setting, only "front of the house" employees (such as servers, bussers, bartenders, hosts, and hostesses) were permitted to share tips, while "back of the house" employees, such as cooks and dishwashers, were excluded from tip-pooling arrangements. However, more recently Courts have held that employees working in the chain of service are permitted to share in tips. This includes cooks, dishwashers, bussers, bartenders, hosts, and hostesses that are usually included in tip pools.
An employer who permits patrons to pay gratuities by credit card must pay employees the full amount of the gratuity that the patron indicated on the credit card slip, without any deductions for credit card payment processing fees or costs that may be charged to the employer by the credit card company.
By comparison, mandatory service charges, such as charges that are added by hotels to banquet events or room-service deliveries, are the employer's property and can be retained or shared with employees at the employer's discretion. However, some municipalities, such as the City of Los Angeles, have enacted ordinances requiring covered employers to distribute 100 percent of service charges to their employees.
Even with these protections, employers frequently violate the rights of food service workers. They know that most food service workers are not in a position to file a lawsuit against them. Most food service workers suffer relatively small damages for an employer’s violation. So, food service workers have a hard time finding a lawyer willing to represent them on a contingency fee. However, lawyers like us are more likely to take on class actions
If you are on this page, you are probably concerned about your rights as a food service worker. If your rights are being violated, you want the help of an experienced employment attorney. To see if we can help just fill out our fast, free, confidential employment case evaluation form. The form goes straight to John’s inbox. John typically responds same business day 1) trying to set up an invitation, 2) trying to refer you to a lawyer who might be in a better position to help, or 3) giving you resources to help you understand your rights, find an attorney, and even do it yourself. What do you have to lose?