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Home > Blog > Labor and Employment > Restaurant Waiters and Overtime Law

Restaurant Waiters and Overtime Law

I recently met a waiter who works for a major seafood restaurant chain here in Florida. Ross has been with his current employer (I don’t want to reveal the true name of this well-known restaurant, so we’ll call it ”The Crusty Crab” or “The Crab” for short) for over 4 years and is one of the top waiters. For the past 4 years, Ross has earned approximately $100k annually, even though he admitted to me that he only reports less than half of that. Ross works 6 and 7 days a week…he even bragged to me about not having a day off for the past 3 months. Ross works about 70 to 80 hours per week. Despite all of the overtime hours that he works, Ross doesn’t get any overtime compensation. The reason that he does not get OT compensation is because The Crusty Crab does not allow it. Or should I say, The Crab will not pay it. Truth is, Ross can care less because he is still making good money.

Here’s how The Crab and Ross work their magic. The Crab has a “policy” where it will schedule waitstaff to work no more than 40 hours per week. Ross clocks in and out using a swipe card on the cash register. When Ross reaches 6 hours for the day, he’ll “break out” as he calls it. “Breaking out” means that he goes out on break so that he’s off the clock, but he continues to work and wait tables. Ross ends up making alot more money because he does really well with tips (about $40 per hour on the average).

Why does Ross do this and why does The Crab allow this conduct to go on? Well, Ross stands to make an extra $200-$250 over his final 4 or 5 hours and The Crab gets free labor.

What is wrong with this? Well, for starters, it is illegal. Under the Fair Labor Standards Act (FLSA), Ross is supposed to get paid time and a half his regular rate of pay for all hours worked in excess of 40 per workweek. Since Ross is working 30-40 hours of overtime per week, he is owed at least one and a half times the minimum wage (currently $6.79 per hour), or $10.19 per hour. That’s another $300-$400 per week that The Crab should be paying Ross. Ross didn’t realize this, but he really doesn’t care because he’s taking home over $2,000 per week. He’s surprised and he didn’t realize that he was entitled to overtime. He thought that, since he voluntarily worked, he was not entitled to overtime compensation. Under the FLSA, you cannot “voluntarily” waive your right to overtime compensation.

The Crab knows that Ross is working overtime, but it simply turns a blind eye to the situation. The Crab benefits because Ross, who is a great waiter, serves The Crab’s tasty seafare, and it doesn’t cost them a dime. Ross benefits because he is permitted to work and make an additional $800 to $1000 per week.

This practice is very common in the restaurant industry. While Ross’s situation seems a little extreme, there are many waiters and waitresses who work for restaurants that have similar “No Overtime” policies, but not as lucrative as Ross’s job. Many restaurants force their waitstaff to work “off the clock” for tips only. If you are tired of this practice and want to get paid your overtime compensation, you should contact a Wage & Hour attorney in your state. Call me for a free case evaluation. The attorneys at FloridaWageLaw.com help people from all over the United States.

By the way, if Ross ever decides to pursue a claim against The Crab for unpaid overtime, his claim may be worth upwards over $90,000. Here’s the math: 30 hours of overtime per week at $10.19/hr is $305.70. Under the FLSA, claims can go back as far as three (3) years in some cases. Since Ross works holidays and rarely takes any time off, we can assume 150 weeks times $305.70, which amounts to $45,855. Successful litigants in FLSA cases are entitled to an award of liquidated damages in an amount equal to the unpaid overtime, or another $45,855. Therefore, Ross’s overtime claim would be $91,710. Most people don’t realize the sheer magnitude of an overtime claim that spans over 2 to 3 years


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