COVID resources for Bay Area restaurant workers:

Know Your Rights

State Labor Law FAQ

The EMPLOYEE is NOT responsible for cash drawer shortages, breakage or loss of equipment. The general rule in labor law is that, except for taxes, an employer cannot deduct money from the pay of employees without their written consent (but employee can be fired).

California Lawful Deductions: under California law, an employer may lawfully deduct the following from an employee’s wages:
  1.     Deductions that are required of the employer by federal or state law, such as income taxes or garnishments.
  2.     Deductions expressly authorized in writing by the employee to cover insurance premiums, hospital or medical dues or other deductions not amounting to a rebate or deduction from the wage paid to the employee.
  3.     Deductions authorized by a collective bargaining or wage agreement, specifically to cover health and welfare or pension payments.

The employer is required to pay all credit card fees on tips {employees are entitled to receive the full amount of the tip left by the customer and Labor Code 351 requires employers to give tips to employees by the next payday after the tip is paid}

Sexual harassment violates Title VII of the Civil Rights Act of 1964 and California’s Fair Employment and Housing Act {includes unwelcome sexual advances, or other visual, verbal, or physical conduct of a sexual nature and actions that create an intimidating, hostile, or offensive work environment based on an employee’s sex, or actual or perceived gender identity, orientation and also includes pregnancy / childbirth or related medical conditions this includes Quid Pro Quo or ‘something for something’}

Discrimination {includes race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age (40 or older), disability or genetic information}   Under California’s Fair Employment and Housing Act, or FEHA, it is unlawful “to harass an employee … because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status.”

  1.     Employees can file a complaint via the California Department of Fair Employment and Housing.
  2.     Employees have a year, instead of six months, to file discrimination or retaliation complaints with the California Labor Commissioner
  3.     Companies with 100 or more employees must provide the state information on employees’ race, ethnicity and gender in various job categories, information that could help the state identify pay disparities.
  4.     Title 2 of the California Code of Regulations, provide additional rules governing employers’ obligations to provide a workplace free of California sexual harassment.
If an employee works more than 5 hours a day, they must be provided a 30 minute unpaid meal break. If the employee works less than 6 hours, the meal break can be waived upon mutual agreement by employee and employer.

A second meal break must be provided if an employee works more than 10 hours in a day. If an employee works less than 12 hours total that day, one of their two meal breaks may be waived upon mutual agreement with the employer.

If an employee has any work responsibilities during their meal break, or has to remain on premises, then the meal break must be paid at their regular rate of pay.

Source: California Division of Labor Standards

The state requires employers (with 25 or more employees) to pay all employees (including tipped workers) at least the full state minimum wage of $14 per hour, as of January 1st, 2021. For employers with less than 25 employees, the minimum wage is $13 per hour as of January 1st, 2021. Below is a chart that goes into minimum wages for different cities & counties.

City

WageDate

City & County of San Francisco

$16.07/hour

July 1, 2020

Alameda

$15.00/hour

July 1, 2020,

Belmont

$15.90/hour

January 1, 2021

Berkeley

$16.07/hour

July 1, 2020 

Burlingame

$15.00/hour

January 1, 2021

El Cerrito

$15.61/hour

January 1, 2020

Cupertino

$15.65/hour

January 1, 2021

Daly City

$15.00/hour

January 1, 2021

Emeryville

$16.84/hour

July 1, 2021

Oakland

$14.36/hour

January 1, 2021

San Jose

$15.45/hour

January 1, 2021

– In California, workers are owed time and a half for any time past 40 hours a week, or after 8 hours work on any given day (i.e a cook working a 9 hour shift is owed an hour of time and a half overtime). If a worker works for 7 consecutive days, they are owed time and a half for the first 8 hours of work on the seventh day. A worker is owed double pay for any time worked past 12 hours on any workday.

– If a worker works for 7 consecutive days, they are owed double pay for all hours after the first 8. Workers cannot waive their right to overtime pay. You are owed for what you work. Employers must pay overtime even for unauthorized shifts. Salaried workers are still owed overtime, unless they make at least double the minimum wage. Overtime must be paid on the next payroll date. If overtime is not paid, you can file a wage theft claim with the Labor Commissioner’s Office.

– If a restaurant includes a mandatory service charge, the percentage of that service charge an employee receives should be considered part of their wage when calculating hourly pay for overtime. Tips are different than an hourly wage, and therefore are not factored into a workers overtime payment.

Source: State of California Department of Industrial Relations.

In California, employees earn 1 hour of paid sick time per 30 hours worked. An employer may limit the amount of paid sick leave an employee can use in one year to 24 hours (if 8-hour shift) or three days (i.e., a cook who typically works 12-hour shifts can take 3 days off, or 36 hours).

– Accrued paid sick leave may be carried over to the next year, but it may be capped at 48 hours or six days. An employee may use accrued paid sick days beginning on the 90th day of employment. An employee may request paid sick days in writing or verbally. An employee cannot be required to find a replacement as a condition for using paid sick days.

– An employee can take paid leave for employee’s own or a family member for the diagnosis, care or treatment of an existing health condition or preventive care or for specified purposes for an employee who is a victim of domestic violence, sexual assault or stalking.

– Employees need to request sick leave with reasonable notice. This means that if a worker has had a doctor’s appointment scheduled for months but doesn’t tell their manager until the beginning of their shift, that their sick leave request could be legally denied. However, if an employee wakes up sick and calls off for their shift that day, their request should be honored.

– Employers must inform employees of their rights upon their hiring, display sick leave poster in public place, and track hours worked for sick time.

– Some cities have paid sick day policies that exceed the state law. For example – San Francisco, Oakland, and Santa Monica have policies where employees can earn up to 72 hours of paid sick time per year. If you have questions about specific localities, fill out our legal intake form below!


Source: State of California Department of Industrial Relations

In California, employees who work more than 3.5 hours in a given day are entitled to a 10 minute break every 4 hours and “every major fraction thereof.” (a major fraction is 2 or more hours, so if an employee works a 10 hour shift they are entitled to three rest breaks, but if they work 9 they are only entitled to 2). These rest breaks should be as close to the middle of the 4 hours as possible.

If an employer does not provide rest breaks, the worker is entitled to an extra hour of regular pay for every day where rest breaks are not properly provided, and may file a wage claim with the labor commissioner’s office.

Source: California Division of Labor Standards

Under California tip law, a tip is any money that is

– Paid, given to, or left for an employee

– By a customer of a business, and

– Is not part of the amount the customer was required to pay for services, goods, food, or drink.

NOTE: Some businesses will add a required “service charge” to a customer’s bill. Unlike with a traditional tip or gratuity, the customer has no choice but to pay this amount. Currently it is not clear if mandatory service charges are tips. California courts have made conflicting statements on whether they are included under Labor Code 351, But if service charges are tips under California tip law, then they must be passed on to employees. {Labor Code 351 LC is the main California employment law dealing with tips and gratuities}.

 

Tip Pooling is LEGAL in CA. Tips can be shared with: shift supervisors, hosts, bussers, bartenders, etc who are part of chain of service. However, tips cannot be shared with managers {anyone with hire/fire ability}.

Employees cannot sue their employers under California’s main tip law, Labor Code 351 LC.25, but there are other legal theories that could work to sue for a violation of California tip law.

  1.  An employee could sue an employer for conversion. In this type of suit, the employee argues that an employer has basically stolen their tips {3 years to file}
  2.  Employees can also file a lawsuit under California’s Unfair Competition Law. Not following California’s tip law can be a form of unfair business practices {4 years to file}
  3.  Employees can sue for breach of implied contract. This is an argument that the employer broke an agreement with its customers to give all tips to workers {2 years to file for ORAL contract and 4 years for WRITTEN contract}
  4.  California employees have up to three years to file a complaint with the California Labor Commissioner’s Office for a tip law violation. 
California employers are required by law to have workers’ compensation insurance, even if they have only 1 employee. If employees get hurt or sick because of work, employers are required to pay for workers’ compensation benefits

San Francisco – 455 Golden Gate Ave, 2nd Floor, San Francisco, CA 94102-7014 – (415) 703-5020

Oakland – 1515 Clay St, 6th Floor, Oakland, CA 94612-1519 – (510) 622-2861

San Jose – 100 Paseo de San Antonio, Room 241, San Jose, CA 95113-1402 – (408) 277-1292

Looking To Take Action?

Think the boss might be breaking the law? It’s time to take action.
Fill out our legal intake form and one of us will be in touch.