Working in a restaurant is often demanding, with early mornings and late nights. As an opening server, you might find yourself arriving early to prepare for the day, performing tasks like setting up tables, prepping ingredients, or checking the stock. But what happens if you are not compensated for this time? Unpaid work before your official shift can be more than just a minor inconvenience; it can be a significant legal issue.
This article will guide you through understanding unpaid pre-shift work, the laws that protect you, and what steps you can take if your employer has not been paying you for your time.
What is Pre-Shift Work?
Pre-shift work involves any tasks or duties performed before your official shift starts. For restaurant employees, this might include:
Setting up tables and chairs
Preparing ingredients or the kitchen area
Organizing supplies
Ensuring that the restaurant is clean and presentable
Checking the cash register or financial preparations
Pre-shift work is crucial for a smooth opening, yet it often goes unnoticed when it comes to compensation. If these tasks are necessary for your job and you are performing them off the clock, they should be considered paid work.
What Does the Fair Labor Standards Act (FLSA) Do?
The Fair Labor Standards Act (FLSA) is a federal law that sets standards for wages and working hours. The FLSA ensures that employees receive at least the federal minimum wage and overtime pay for hours worked over 40 in a workweek.
Under the FLSA, non-exempt employees must be paid for all hours worked. This includes not only the time spent during their official shift but also any work performed before or after the shift, such as pre-shift preparation or post-shift clean-up.
Are Unpaid Early Arrivals Illegal?
Yes, unpaid early arrivals are illegal if you are performing job-related tasks. According to the FLSA, any work that benefits the employer should be compensated. If your employer expects you to arrive early and perform duties without pay, they are violating federal law.
Example: If you arrive 45 minutes before your scheduled shift every day for two years to prepare the restaurant and you are not paid for this time, you are entitled to compensation for those hours.
What Should I Do if My Employer is Not Paying Me for Pre- and Post-Shift Work?
If you find yourself in this situation, there are several steps you can take:
Document Everything: Keep detailed records of the tasks you perform before and after your official shift, including dates, times, and descriptions of your duties.
Speak to Your Employer: Raise the issue with your employer or HR department. Sometimes, employers might not be aware of the situation and might correct it once brought to their attention.
File a Complaint: If speaking to your employer doesn’t resolve the issue, you can file a complaint with the Wage and Hour Division (WHD) of the U.S. Department of Labor.
Seek Legal Advice: Consider consulting with a labor attorney who specializes in wage and hour law. They can provide guidance and help you understand your rights.
Can I Sue My Employer for Unpaid Work in Restaurant Openings?
Yes, you can sue your employer if they fail to compensate you for pre-shift work. The law allows you to file a lawsuit to recover unpaid wages and possibly additional damages.
When Can I Sue My Employer for Unpaid Work in Restaurant Openings?
You can sue your employer for unpaid work under the following conditions:
Failure to Pay Minimum Wage: If your unpaid pre-shift work results in your average hourly pay falling below the full minimum wage, you have grounds for a lawsuit.
Unpaid Overtime: If the unpaid work pushes your total hours over 40 in a workweek, you are entitled to overtime pay at a rate of one and a half times your regular rate.
Repeated Violations: If your employer continues to ignore your complaints and fails to pay you for your pre-shift work despite being aware of the issue.
How Can I Sue My Employer for Unpaid Work in Restaurant Openings?
Here are the steps to take if you decide to sue your employer:
Consult an Attorney: A lawyer experienced in wage and hour cases can help you assess your situation and determine the best course of action.
File a Complaint: You can file a complaint with the WHD or your state’s labor department. They may investigate and resolve the issue without the need for a lawsuit.
File a Lawsuit: If necessary, your attorney can file a lawsuit on your behalf. This might include filing a claim for unpaid wages, damages, and attorney’s fees.
Gather Evidence: Document all your unpaid hours and the tasks you performed. This evidence will support your claim and help your attorney build a strong case.
What Kind of Damages Can I Recover?
If you sue your employer for unpaid work and win, you may be entitled to several types of damages:
Unpaid Wages: Compensation for the hours you worked without pay.
Liquidated Damages: In some cases, you may receive double the amount of unpaid wages as a form of penalty against the employer.
Attorney’s Fees and Costs: Reimbursement for legal fees and any other costs associated with filing the lawsuit.
How Can I Recover My Unpaid Wages?
Recovering your unpaid wages involves several steps:
File a Complaint with WHD: This government agency investigates claims of unpaid wages and can help you recover what you are owed without going to court.
Negotiate a Settlement: Your attorney can negotiate with your employer to reach a settlement without litigation.
Court Judgment: If your case goes to court and you win, the judge will issue a judgment in your favor, ordering your employer to pay the unpaid wages and any additional damages.
How an Attorney Can Help You
Dealing with unpaid work claims in restaurant openings can be daunting, but an attorney can provide invaluable assistance at every step. From assessing the strength of your case to representing you in court, attorneys offer comprehensive support to ensure your rights are protected and you receive the compensation you deserve. Let’s explore how attorneys can guide you through this process effectively.
Assessing Your Case: Attorneys evaluate the specifics of your situation to determine the strength of your claim, reviewing work records and relevant documents.
Understanding Legal Rights: Attorneys explain your entitlements under labor laws, clarifying minimum wage, overtime pay, and compensation for pre and post-shift work.
Gathering Evidence: Skilled in collecting evidence, attorneys help compile detailed records of work hours and tasks performed to support your case effectively.
Negotiating with Your Employer: Attorneys negotiate on your behalf for a fair settlement, leveraging legal expertise to advocate for your rights.
Filing a Complaint: Attorneys assist in filing formal complaints with the Department of Labor, initiating investigations into employer practices.
Representing You in Court: In litigation, attorneys represent you in court, presenting your case and making legal arguments for a favorable outcome.
Calculating Damages: Attorneys accurately calculate damages owed, ensuring full compensation for unpaid wages, interest, and fees.
Handling Legal Procedures: Attorneys manage procedural aspects of your case, navigating filing deadlines and court rules efficiently.
Advising on Legal Strategy: Attorneys advise on the best legal strategy, guiding decisions on settlement, mediation, or litigation.
Protecting Against Retaliation: Attorneys inform you of protections against employer retaliation and take action if adverse treatment occurs.
Take Control of Your Rights with BLG
Unpaid pre-shift work is not only unfair but also illegal. As a restaurant worker, you have the right to be compensated for all the time you spend performing job-related duties. The Fair Labor Standards Act protects your rights, ensuring that you receive the federal minimum wage and overtime employee’s pay for all hours worked.
If you’re dealing with unpaid work in restaurant openings, don’t let your hard work go uncompensated. At BLG, we specialize in labor law and are dedicated to helping restaurant employees get the wages they deserve. Our practiced team is dedicated to protecting the rights of employees in the restaurant industry and ensuring that they receive fair compensation for their work.
Contact us today for a free consultation and let us help you recover your unpaid wages.
1-800-870-8910