That Nice HR Lady: Stiffed on the Side Work

Dear Nice HR Lady,

I work at a small family-owned restaurant with about 12 employees. We’re constantly told to clock out “if it’s slow,” but then managers still expect us to wipe counters, prep sauces, roll silverware and stay available if customers walk in. Most of us just do it because we don’t want to be difficult, and honestly everyone kind of assumes this is just how restaurants work.

One of the cooks recently said this might actually be illegal, and now the owners are angry and saying, “If we paid for every little thing, we’d go out of business.”

Is this normal restaurant culture, or are we getting taken advantage of?

— Still Rolling Silverware Off the Clock

Dear Still Rolling,

Well shoot. Did someone forget that as an employer, they have to actually pay their employees? Somewhere, an HR compliance manager just felt a mysterious disturbance in the force and opened a fresh PowerPoint titled: “How to Be Compliant With Wage and Hour Laws.”

So put down the silverware, dear Still Rolling, and let’s chat.

First, I’m sorry that you’re experiencing this at work. I’m glad you spoke with your co-workers. It sounds like they’re sharing good information.

Let me just get right to it, and validate your experience and your question: Yes, as a non-exempt, hourly employee, you have a right to be paid for all of the hours you work. Wiping counters, refilling condiments, greeting customers—those are all work activities, and you should be paid. And here’s the kicker: Even if you weren’t performing those duties, if you are asked to remain available on site, and aren’t free to schedule and enjoy your own activities before being called in, those hours might be considered paid time. Kitchens and restaurants can be high-test work environments, with the forearm burns and crocs to prove it, but being paid for the hours you work is just baseline business practice.

You hinted at another issue here, but I’m just going to drag it out into the light so hopefully it will wither. Speaking openly with colleagues about pay is one of your rights under the National Labor Relations Act (NLRA). Here’s the thing about your right to discuss your pay with your colleagues: while your employer may be angry privately (which could be just the wakeup call they need), impacting you or your colleagues at work because you had this conversation—by, for instance, getting angry—could (oops!) be problematic. At best, it’s not a good look (angry very rarely looks good on a manager/owner), and at worst, it might shore up a claim of (gulp) retaliation or interference with protected concerted activity.

You do not owe your employer your unpaid labor and efforts, you are not at fault for talking about your pay openly, and you most certainly are not responsible for the business’ success or failure.

I can see that you’re ready to have a good cry session in the walk-in cooler right now. This is a lot. But when you’ve caught your breath, there are some things you might consider: First, if you want to know more, take some time to familiarize yourself with the wage rights that you have under Federal law and under Washington State law.

Review your federal rights in the U.S. Department of Labor’s (DOL) Fact Sheet #22: Hours Worked Under the Fair Labor Standards Act (maybe even mail Fact Sheet 22 anonymously to your boss?).

And you have further rights (such as lunch breaks and paid breaks) in Washington State through the Department of Labor and Industries (L&I).

If this situation continues, begin keeping a simple log of when you're instructed to clock out, what tasks you completed afterward, and, if applicable, when you eventually leave the work place (if you’re not asked to clock in again for more work). Also log what hours you think you worked but weren’t paid for previously. Any time you think there’s something not quite right, documenting is a good idea: times, places, people who witnessed, documents that corroborate, etc. You don’t need to put on a tinfoil hat and write a novel, but in the work world, documentation is critical—saying that you haven’t been paid is one thing, but pointing out the documented 17 dates you weren’t paid is another.

Let’s take a moment to validate that feeling off-kilter and insecure in a situation like this is okay. This is a pretty emotionally charged scenario, with a lot riding on it for you. If talking to your employer right now feels like too much—I get it. You have options if direct conversations don't feel safe. One of the options is to consider an anonymous report to the U.S. DOL or Washington State L&I (links, above).

"You do not owe your employer your unpaid labor and efforts, you are not at fault for talking about your pay openly, and you most certainly are not responsible for the business’ success or failure." — TNHRL

If you ARE ready to talk to your employer, take a minute to orient to the idea that you’re going to be gently, kindly and directly enforcing your boundaries and limits. When you’ve done that, schedule time to speak with your employer—don’t have this conversation during the dinner rush, when water glasses are flying around and the cook just burned the eggplant parmesan. Bring your estimated hours to the meeting, and let them know that you will need to be paid for those hours. Avoid arguing, or blaming, or shaming. Simply, state the facts: You have worked hours for which you have not been paid. Let them correct the problem.

But, if they don’t? I know you need a paycheck, and small towns can be tricky, and power imbalances and retaliation are real. I do. However, if nothing changes, you might eventually consider whether this is a (toxic?) relationship you want to continue. Being treated fairly isn't asking too much, and there are work environments out there that will provide fair treatment. I promise.

Employers! I’m going to start carefully, and kindly, here, because I want you to have the information and resources that you need in order to operate your business. And being direct in this instance, is kindness:

You need to pay your employees for all hours worked.

And further, you have a responsibility to correct pay issues immediately when they are brought to your attention.

If you’re saying anything along the lines of "If we paid for every little thing, we'd go out of business", take a moment to check in with yourself. Say this out loud to yourself, and see how you feel: “I want my business to succeed, so I’m not going to pay my employees.” Ick, right?

Paying employees isn't an extra expense that gets added if business is going well. It's one of the foundational costs of operating a business. If the business model depends on unpaid labor, that's not a staffing strategy. If you have doubts or questions about how to pay your staff, reach out to the Washington State Department of Labor (link, above). The local economic development council also has some great small business support resources and ideas.

If you’re reading this from outside of Jefferson County, WA, your local Chamber of Commerce, Economic Development Council or other Small Business Associations will be helpful. You don’t have to do this in the dark, and being a small employer doesn’t exempt you from employee obligations.

So, to return to our friend Still Rolling—you’ve got this. The power is yours. Use it wisely, and I’ll be thinking of you the next time I’m leaving a tip. Best wishes for a light shift, and a tasty shift meal, and don’t hesitate to stay in touch to let me know how things are going, or to ask follow up questions.

Sincerely,

That Nice HR Lady, Not-a-lawyer, just your friendly neighborhood liability prevention specialist

Do you have questions about that new co-worker’s body odor? Or about the extra work you’re being asked to perform, now that the front desk staff finally up and quit? Drop me a line at thatniceHRlady@jeffcobeacon.com. Questions will be printed anonymously, with identifying details removed to protect the innocent.