What to do if my sister works at a resturant and is being paid less than minimum wage?

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What to do if my sister works at a resturant and is being paid less than minimum wage?

She was hired as a waitress but does everything but waitress. She cooks and runs the cash register. The dining room is closed on midnight shift which is when she works. Her employer pays her $3.50 an hour and makes her work 12 hour shifts without a break. Also, because he can’t keep employees she works 7 days a week. I feel so sorry for my sister because she can’t find work anywhere else. I really feel like she’s being taken advantage of. She has also been experiencing some stress related health problems. Can she sue her employer for breaking the labor laws?

Asked on April 4, 2012 under Employment Labor Law, Michigan

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

IF part of her job were being a server (e.g. waitress, bartender) as as a result, she earned tips, then it would be legal to pay her less than minimum wage. The wage and hour laws allow an employer a  "tip credit" when hospitality industry employees earn tips. Basically, if her hourly wage plus her tips brings her over minimum wage  (for example, between wages and tips she earns at least $290 for a 40 hour week), that would be legal.

But if, as you indicate, she is non-tipped position, then she must be paid minimum wage (at least $7.25 per hour). Also, whether she earns tips or not, when she works more than 40 hours in work week, she must be paid overtime (time-and-a-half) for all  hours past 40.

If she is not being paid as much as she should be paid, she should have a legal cause of action. She could file a complaint with the state department of labor, or she could sue. If she sues, she could potentially recover all back wages she should have been paid; in many circumstances, she'd be entitled to additional compensation as well--e.g. double back wages, attorney's fees. It would be worthwhile for her to meet with an employment law attorney to discuss her options in detail.


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