I filed for unemployment, but the EDD said I don’t qualify. Does that mean I cannot sue my employer?
No. In fact, sometimes, it can help your court case against your former employer. For example, if your former employer tells the EDD you were fired for one reason, they might look untruthful in Court if they change their testimony.
I used to travel a lot for my old job, but wasn’t paid for all my expenses. Can I still demand them even after I left?
Possibly. It depends on what you spent the money on, and whether your former employer knew about the expenses.
I think I worked as an independent contractor, but I never got paid for all my time and expenses. How do I know whether I was an independent contractor or an employee? Can I still recover expenses from the other guy?
It depends.
I have to travel between locations where I work, but I am not paid for my travel time. When does my paid time actually start and stop each day?
If you are not exempt from overtime, such as with an “outside salesperson”, your paid time starts once you reach your first destination of that day, and continues for each destination afterwards, until you leave your last site for the day.
Who can share in tips?
Basically, anyone but the manager or the owner. Figuring out who is considered a manager can be confusing. One indication is how the person gets paid: If the manager is on salary (as opposed to hourly), the employer considers them a manager and they cannot share in tips.
Is mandatory tip pooling legal?
Mandatory tip-pooling (such as the tip-jar) is allowed in California, but only up to 15%. Any tip-out over that amount is up to the server.
Can my employer skim the 3% visa/mastercard from my tips?
No, not unless the tip is a “mandatory service charge” such as with parties of six or more, “Service Charges” to the customer are not considered “tips” under the law.
Who keeps track of my tips?
Your employer is required to keep an accounting off all tips, regardless of whether the tips are cash or credit cards. Typically, a servers’ sales are totaled each night and tips are calculated from the total sales for each server.
Can I ask my employer for an accounting of the tips I have earned?
Yes. This is common when filing your taxes or applying for loans such as student loans or refinancing home loans.
My employer keeps all of my tips until payday. Is that legal?
Yes, but they must pay you all of your tips by the next regular payday.
Am I required to report all my tips to the IRS before I can raise the issue with my employer?
No. Everyone’s tax profile is different. Consult your tax preparer. It’s nobody else’s business.
I have problems with my immigration status. Can my employer use this against me?
No, that would be illegal.
I am afraid I will get fired if I complain to my employer about one of these problems, and I really rely on my paycheck. How can the law protect me?
Simply put, the law probably cannot keep your job for you in a private setting, without a union agreement. Start looking for a new job before you complain. It is natural to be afraid of “getting caught” by your current employer. But remember, you will command a higher rate of pay if you already have a job. Your fear of getting fired for complaining might be realistic. Update your resume.
Second, complain in writing, but be polite. E-mail is a terrific method. If you do get fired, or even if you get “dropped from the schedule” after you complain, you can make a strong case that your employer retaliated against you for complaining.
Third, try to get your employer to mend their ways or at least explain themselves, even if you think it is futile. If you quit and apply for unemployment, you may have to show you tried to fix things before you can collect an unemployment check.
What if I get fired after I complain?
There are four things you need to know:
- Keep a paper trail. Make a copy of the restaurant menu or other document that affects your tips, such as the closing sales reports, weekly work schedules or e-mails. If you do get fired, these documents might mysteriously “disappear”.
- Apply for unemployment, no matter what reason your employer gives you for termination. Sometimes an employer will claim the employee was drunk or stealing something in order to avoid paying unemployment. However, if you dispute such claims, the employer will have to prove to the unemployment office by sworn testimony. Here’s the link: https://eapply4ui.edd.ca.gov/
- Your last paycheck, including vacation/sick time must be ready within 24 hours if you get fired, or 72 hours if you quit.
- Find other former employees (try facebook) who can corroborate.
