Location: California
My sisters job (she works at a restaurant and is a server) just implemented a bunch of new rules, one of them being that they have to clock out of their serving shift and clock into a “side work” shift that’s less money an hour. Is this legal?? They are implementing a bunch more rules that are weird but this one has me confused and concerned.
Comments
That makes no sense. Servers in CA are already making minimum wage in probably 99.9% of places. They can’t pay less than that. And she can’t count her tips into them “paying her less” per hour.
IANAL, but used to work at a restaurant. Servers usually make less because they are tipped employees, so restaurants would load servers with side work and pay less overall. Of course, this led to a court case, and so they implemented rules that servers can only do certain jobs while clocked in as server, and all others while under a minimum wage earning job code. So… yes, they can make servers do certain work under a different job code.
At what point is she clocking out and back in on this other shift? Is it her putting in, for example, her 8 hours then picking up a 4 hour shift as side work/overtime?
If its her choice to work some extra hours this could be an interesting situation and legal challenge. She’s done her full time job and is, for all practical purposes, working a second job at the same place.
If the boss is saying “You worked 8 hours at ‘Rate 1’ and I need you to stay for 4 more at ‘Rate 2′” then that is, in my analysis, illegal.
(I’m not a lawyer)
It’s weird that side work is less per hour, but that is not relevant. As long as both rates are above minimum wage then I believe this is legal. They are different job duties. If this new side work rate is lower than what she was getting paid before there could be a constructive dismissal play for unemployment, but only if your sister wants to leave.