15 Common Illegal Things Restaurants Do to Employees

It is common knowledge that restaurant employees frequently face unfair and illegal practices. When a restaurant owner or manager breaks the law and violates workers’ rights, restaurant workers have options. Unfortunately, it is rare for workers in the restaurant industry to stand up for themselves by taking legal action. 

Laws protect the rights and finances of food service employees. However, before you can take action against illegal restaurant practices, you have to know when a practice simply feels unfair and when it is illegal. Every restaurant worker should know the top 15 illegal things restaurants do to employees and what to do when they happen. 

Top 15 Common Illegal Practices in the Restaurant Industry

The unfortunate reality of the restaurant industry is that there is often little oversight or enforcement when it comes to ensuring workers’ rights are protected. Illegal practices can occur at national chains and small, locally owned businesses. Owners or managers often have no idea what they are doing is illegal. 

Employment laws are meant to protect workers. Managers and restaurant owners must be aware of and follow them in the workplace. When they do not, an employee should not hesitate to speak with an employment lawyer.

Here are the top 15 violations that happen most often in the restaurant industry. While this list is not exhaustive, it contains the most common illegal practices.

1. Requiring Off-the-Clock Work

It is illegal to ask employees to perform work when they are not clocked in. In fact, as a best practice, an employee should never perform work of any kind while they are off the clock. If a restaurant worker decides to lend a hand to coworkers after clocking out and then gets injured, they may not qualify to recover workers’ compensation for the injuries. 

Requiring workers to perform work duties off the clock is no different than demanding unpaid labor, and it is illegal. Any responsibilities a worker needs to fulfill at the start or end of their shift, such as rolling silverware, mopping up, or taking out the trash, must be performed while the employee is still on the clock and extends to all work obligations, such as attending work meetings or processing payroll from home. 

2. “Clopening” Shifts Without Sufficient Rest In-Between 

“Clopening” shifts are shift schedules that involve closing the restaurant and returning to reopen it. This type of scheduling by itself is not illegal. 

For example, a steakhouse serving only dinner might open at 5 p.m. and close at midnight. In this case, a worker who closes and then opens again the next evening has plenty of time to rest before they are due back at the restaurant. 

This type of shift schedule can be illegal when a worker has only a few hours between closing and opening. Some states set a mandatory minimum number of hours between work shifts, with eight hours as the standard. Depending on local laws, scheduling “clopening” shifts may constitute an illegal restaurant practice. 

3. Illegal Tip Pooling Arrangements

Most front-of-house restaurant workers hold tipped positions. In a standard tipped job, employees take turns taking customers, and each worker keeps the tips they make. 

Tip pooling, also known as tip sharing, is an alternative payment arrangement that has become increasingly popular in recent years. Tip pooling involves all tips being combined and then split equally among all tipped employees at the end of the shift. 

When done correctly, tip pooling is not illegal. The practice becomes illegal when the tips are not divided fairly. The biggest concern with tip pooling is when tips are shared with non-tipped workers. 

Taking money from workers in tipped positions and giving a cut to hourly wage earners in the back of house (or salaried managers) is illegal, as these workers do not rely on tips as their primary form of income. 

4. Deduction of Credit Card Processing Fees From Tips

Some restaurants try to avoid paying credit card processing fees by deducting them from the workers’ tips before paying them out. While unfair, the practice alone is generally not illegal except in two circumstances. Tipped restaurant workers should be aware of these to recognize when their tips are being illegally withheld. 

The first situation is when paying credit card fees with tips leaves the worker with less than the required minimum hourly wage, which is often a particular risk during slow shifts when a server might have only one or two tables. The other situation is when state laws forbid employers to subtract credit card fees from workers’ tips.  

5. Withholding Tips as Punishment or for Damages

Restaurant workers often wonder, “Is it illegal to withhold tips from employees?” Unfortunately, there is no clear-cut answer. Whether an employer can withhold tips often depends on the reason, the amount, and local laws. 

However, withholding tips as a form of punishment is nearly always illegal. Sometimes, restaurant managers attempt to enact a “you break it, you buy it” policy for workers, which is illegal. During daily operations at a restaurant, glasses, and plates are bound to break occasionally, and workers cannot be forced to pay for the damage. 

Similarly, it is also illegal for an employer to withhold tips to punish a server for events that happen on the job. A worker cannot be punished financially for customer walkouts or complaints. When a worker fails to show up on time or performs the job poorly, disciplinary measures can not include withholding money they have earned. 

6. Mandatory Training Without Compensation

Any form of required work must be compensated, including restaurant worker training. If training is mandatory and benefits the employer’s business, employment law requires that workers be compensated. Compensation should add up to at least the state’s minimum wage rate, although workers in training can be paid either an hourly wage or tips. 

7. Keeping Tips from Automatic Gratuities

One common restaurant practice is to add an automatic gratuity to the bill for larger parties. Customers who see the tip added to the bill often leave no additional tip. When an employer withholds the automatic gratuity and does not pay it out to the server, it can be an illegal practice. This typically depends on state laws. 

Another common question restaurant workers ask is, “Can owners take tips if they work?” A restaurant owner is allowed to work in their own restaurant. However, an owner cannot take tips earned by other workers. 

If the owner decides to begin taking tables and other servers lose money because of it, the owner is obligated to ensure the other workers earn at least the minimum wage rate. 

8. Forcing Employees to Work in Extreme Temperatures

Forcing employees to work in extreme temperatures is often considered an illegal restaurant practice. Workers who must work in extreme heat or cold are at risk of experiencing heat stroke, dehydration, or hypothermia. 

Restaurants that require workers to do their jobs in extreme temperatures must ensure all employees have adequate breaks and the opportunity to hydrate. 

9. Lack of Proper Safety Training

A lack of proper safety training can easily lead to severe or life-altering injuries, especially in a restaurant kitchen. Workers frequently work with dangerous equipment, high heat, and hazardous substances. Restaurants are legally obligated to ensure that all employees complete sufficient safety training before they work in positions with a high risk of injury. 

10. Creating a Hostile Work Environment

Creating a hostile work environment is a violation of employment law, which tends to be a particular risk in situations where a worker has stood up for their rights in some way, such as reporting harassment or illegal tip withholding. Engaging in strategies such as hostility, isolation, or harassment — or encouraging other employees to do so — is illegal.   

11. Prohibiting Discussion of Wages

When workers discuss wages with one another, they find out whether they are being under or overpaid compared to their coworkers. Employers often try to hire workers for as low a pay as possible. As a result, employers may attempt to initiate policies that ban employees from discussing wages, which is illegal under the National Labor Relations Act (NLRA) and protects workers’ rights to discuss wages. 

12. Workplace Discrimination

Workplace discrimination is illegal in all workplaces, including restaurants. Employees are protected from a variety of discriminatory practices based on gender, race, disability, age, religion, sexual orientation, and pregnancy. In the restaurant industry, discrimination can take the form of not hiring, not promoting, scheduling certain workers only on slow shifts, or treating other servers preferentially when seating tables. 

13. Failure to Distribute Service Charges Properly

Service charges are mandatory fees included in a restaurant customer’s bill. These are most common with delivery arrangements, such as when a hotel restaurant delivers room service or a pizza restaurant offers delivery. 

Charging service fees is not illegal. However, it is illegal to give customers the impression that a service fee goes to the server or delivery person if the restaurant keeps that money for itself. 

Restaurants that charge service fees must either distribute a fair amount to workers as tips or ensure the customer is informed that workers do not receive the money paid in a service charge. 

14. Paying Below Minimum Wage for Non-Tipped Tasks

Tipped workers are often required to spend much of their work time performing non-tipped tasks. Examples include cleaning the restaurant facilities, assisting with special functions like catering events, rolling silverware, or performing inventory. 

It can be difficult to identify when non-tipped tasks violate employment law. If tipped workers spend a significant portion of their time on non-tipped tasks, the restaurant is required to pay at least minimum wage for the time spent on the non-tipped tasks.   

15. Insufficient Facilities for Employee Breaks

The Occupational Health and Safety Administration sets guidelines for workers’ rights when it comes to breaks. Restaurants are required to meet these standards. 

For example, a restaurant that bans employees from eating in the dining areas or the kitchen must provide a space where employees can eat. Restaurant workers should have reasonable access to restrooms, and breastfeeding mothers must be given time and space to pump breast milk.   

Failing to abide by these rules and provide adequate break spaces for restaurant employees often constitutes an illegal workplace practice. 

Get Assistance From an Attorney

If your restaurant employer engages in any of these illegal practices, your rights are being violated. When employers break the law, they are often held accountable only when workers are willing to come forward.

An employment law attorney can review your situation and advise you on your options during a free consultation. Your employer can face legal consequences for violating employment law. In addition to stopping the illegal practices, you might also be able to recover compensation through a lawsuit. 

If a restaurant is violating your rights, Wenzel Fenton Cabassa can help. Our experienced employment attorneys handle many types of employment cases, including wage disputes, unpaid overtime, wrongful termination, and hostile work environments. 

Contact Wenzel Fenton Cabassa today to schedule your free consultation with an experienced Florida employment attorney.