Working in restaurants can be tough – especially under unpleasant ownership or management. In some circumstances, conditions may be so severe as to warrant a lawsuit against the restaurant.
This article reviews a few laws that protect California restaurant employees. If your restaurant employer is in violation of one of these laws, you may have grounds for a lawsuit.
It is illegal for a restaurant employer to prevent you from clocking-in at your scheduled shift time. For example, if you are scheduled to work at 11:00 AM, you are entitled to clock-in at 11:00 AM, regardless of whether or not there is a table ready to be served.
If your employer has prevented you from clocking in at your scheduled shift time, you may be entitled to back-pay for the lost hours.
Your employer is required to provide an opportunity for you to take a 30-minute meal break during shifts lasting longer than five hours.
A Meal Break Constitutes: 1) A 30-minute uninterrupted break 2) where you are allowed to leave the premises and 3) where you are relieved of all duty during the full period.
Restaurant employees are entitled to a meal break:
- For a shift lasting longer than five hours, you must receive a meal break once before the end of the fifth hour.
- For a shift lasting longer then ten hours, you are entitled to a second meal break before the end of the tenth hour.
Although an employer must provide an opportunity for you to take a 30-minute meal break, your employer has no obligation to ensure that you actually take your break. However, if you do work through your break, you are entitled to your normal hourly compensation.
Remedy for a Missed Break: If your employer fails to allow you your 30-minute break, you may be entitled to one-hour of back-pay for each break you were not given.
It may be difficult to succeed in an unlawful termination suit against your restaurant employer unless you were terminated for an unlawful discriminatory or retaliatory reason.
Employment is "At-Will"
Most restaurant positions are employed "at-will," which means that there is no employment contract between you and your employer. In the same manner that you are entitled to quit your job at any time for any reason, your employer is entitled to terminate your position at any time for almost any reason.
Discriminatory or Retaliatory Purpose
However, an employer is never entitled to terminate you, or take other adverse employment action against you, for an unlawful discriminatory or retaliatory reason. See unlawful discrimination and retaliation below.
It is illegal for your employer to take adverse employment action against you for a discriminatory reason based on a protected classification, including your:
- Age (40 and Older)
- Sexual Orientation
- Adverse actions include:
- Refusal to Hire
- Disparaging Treatment
- Negative Evaluations/References
However, in order to succeed in an unlawful discrimination suit, you will need evidence that your employer’s adverse action against you was in-fact motivated by discriminatory reasons.
For example, you might be able to show unlawful discrimination if your employer made disparaging remarks about your protected class, or if there was unequal treatment of employees based on their protected class.
It is unlawful for an employer to take adverse employment action against you in retaliation against your engaging in a protected activity. For example, an employer cannot retaliate if you make a formal or informal complaint regarding unlawful discrimination.
It is unlawful for an employer to sexually harass employees or to fail to prevent sexual harassment from occurring if the employer has reason to know of it. Thus, your employer may be liable if a co-worker is sexually harassing you and your employer fails to prevent it once they have reason to know that it is occurring.
As such, if you feel a co-worker is sexually harassing you, you should let your employer know right away.
Sexual harassment can include:
- Unwanted sexual advances, either physical or verbal
- Offering employee benefits in exchange for sexual favors
- Threatening adverse employment action unless the employee agrees to sexual favors
If you feel your restaurant employer has treated you unlawfully, you should contact an experienced business attorney right away.