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Owners won't pay overtime

8K views 79 replies 23 participants last post by  grande 
#1 ·
The owners won't pay my overtime or that of the staff (BOH or FOH).  They instead have, historically, paid the staff in cash for the over hours.  I did not realize this was their system when I signed on and I, of course, do not agree with it and have told the owner that this is not acceptable to me.  Their only options are: Salary, pay my overtime or I walk.

This restaurant is in NY state.

This is illegal.

Just looking for similar stories, if anyone has them.
 
#3 ·
Seems pretty common in NY/NE. I live in Seattle, and have one friend from Jersey, one from Boston, and one from NYC, and they all have stories about places not paying OT. Various systems were mentioned, such as just not paying past 40, paying OT at regular rates, etc.

A little story, I had a problem where my employer was adjusting my time clocks. When I left I called and reported it to L&I. Their investigation was to callthe restaurant and ask the bartender if this was going on. So, best of luck.
 
#5 ·
I would take the cash if it was time and a half.... still illegal, though. Plus, you can't do anything if they screw you. And if you pitch a fuss and then go along with it, you're kind of in their pocket. You know, knowlege of illegal activities and what not.
 
#6 ·
I would take the cash if it was time and a half.... still illegal, though. Plus, you can't do anything if they screw you. And if you pitch a fuss and then go along with it, you're kind of in their pocket. You know, knowlege of illegal activities and what not.
With all due respect you're being paranoid. None of that would fall back on you. Cash is better for you, and the business, for obvious tax reasons.
 
#8 ·
I guess I should add that in this business we tend to have an easy come- easy go approach to labor laws- at lesst I have seen that numerous times- but that waiving your legal rights as an employee is never, in my opinion, a good long term decision, even if you benefit in the short term. A good example is, what if you were badly burned working for cash off the clock? Your employer has deniability that you were working, and therefore can contest whether it's covered by L&I. Having been on the management end of several L&I claims, I can tell you that if a restaurant doesn't have to pay something, they aren't going to.
 
#9 ·
Are they paying you time & half for all OT?
If you are getting paid for all hrs worked, why sweat it?
When I did movie work, we would sometimes work for foreign production company's, they alway paid cash less 10% on the spot on pay day or full hrs on payroll at approx 40% taxes.
 
#10 ·
@Sherman452,

Chef, I would at least bring it up. The last thing you want at the end of the year is a 1099 for the cash they paid you.
With all due respect you're being paranoid. None of that would fall back on you. Cash is better for you, and the business, for obvious tax reasons.
If you accept the cash then you kind of are a part of tax evasion.
 
#11 ·
Tell them you will speak to someone at Dept. Of Labor and Dept. of Internal Revenue
 
#12 · (Edited)
With all due respect you're being paranoid. None of that would fall back on you. Cash is better for you, and the business, for obvious tax reasons.
Tell ya mutha to stop setting a bad example.
If you accept the cash then you kind of are a part of tax evasion.
That's exactly what it is... If they ask you to do something illegal once it will probably happen again. Although as you say they may just stick you with a 1099... not illegal but I feel like that would upset me more, especially if they didn't pay me time and a half.
Tell them you will speak to someone at Dept. Of Labor and Dept. of Internal Revenue
= Fired
 
#14 ·
@Sherman452
Their only options are: Salary, pay my overtime or I walk.
I am always of the frame of mind that I can work anywhere doing what I do with my experience. Therefore if I feel uncomfortable with something that company/owner is doing whose ramifications from taking that cash means possible issues later with the government or otherwise (and with that attitude of take it or leave)........I would tell the owner "that if what he is offering is so good then shove it up his a$$ since good things never hurt and proceed to walk out the door wishing him well with the taxman as I will be reporting him asap! Screw him if he thinks to take advantage of good hard working people for his own immediate monetary gain and for thinking he's untouchable!"

Now go look for an awesome opportunity with a company that appreciates you for what you bring to the table and pays you accordingly :)
 
#15 ·
    Go talk to the necessary government agencies. I am in the Capitol District upstate and have dealt with the IRS, NYS tax dept, and Labor depts. They will be more than happy to explain what ever you want to know without needing to know who you work for. 

NY is very serious about these issues. You are correct in demanding salary, overtime pay or walking. There is no reason to be caught up in some else's deceitful behavior. I suspect they are most likely engaged in other accounting inaccuracies and all of it will come back to bite them. The government has teams of people trained to spot these issues. 

A good accountant can help them with payroll issues and perhaps a reworking of the schedule would help to cut down on the need for overtime. But if some one works it, they have to pay it. 

In the small restaurant, too much overtime may indicate the need for another employee, but that can be best established after a review of kitchen production needs and FOH staffing needs. 

I'm also very curious as to where you are located. 

 Fwiw, I've also found that employers who fudge on pay issues, tend to be the same ones who overlook or fudge on other oversight issues. The ability to make a profitable restaurant without fudging is one of the reasons restaurants are notoriously difficult to run. 
 
#16 ·
Tell ya mutha to stop setting a bad example.

That's exactly what it is... If they ask you to do something illegal once it will probably happen again. Although as you say they may just stick you with a 1099... not illegal but I feel like that would upset me more, especially if they didn't pay me time and a half.

= Fired
Yeah I work with many guys that accept cash for overtime and not have any issues so watch your mouth.
 
#17 · (Edited)
When you work over 40 hours a week for meager pay; do you really want to fall into a higher tax bracket? I doubt I've ever worked for someone that did things totally legal. 

My current employer exposed me to a grill cleaner that said 'read the msds before using this product'. He failed to provide the msds after I requested it 4 times in 2 months. I had a chronic cough for two years and woke up with fluid in my lungs ~5 times. I finally found the msds online and told him what it did to 1-2% of the population (caused pneumonitis or pulmonitis) and how I was one of that small percentile. I asked him to revert back to the original stuff we used and he said it was  corporate decision and he could do nothing about it.

-That's just a small example of the illegal stuff that goes on, and what I've been through with this pos boss. Most people prefer cash. You're just going to make a bad name for yourself if you cause an upset. I'd suggest you either leave benevolently, or cave in and accept things. It's not like they're taking a cut of your tips like Mario and some other celeb chef were doing. 
 
#20 ·
@tweakz your example is a great example of how people not doing things legit is bad for the employee; just because the problem already exists, doesn'tmean we have to perpetuate or encourage it.
The worst part is, middle management, like sous chefs and lead cooks in corporate places, often have to enforce questionable corporate policies.
 
#21 ·
In our little neck of the woods we have business owners who tabulate your overtime hours during the summer months, and save this overtime money to pay you in the winter slow months.

One owner I know will take this OT money and pay the person at regular wages only.

Highly illegal.

Also, when you are paid cash under the table, you are, in effect, cheating the government of taxes.

Happens all the time. Is this right?
 
#22 ·
I may be fired but you could be put out of business
 
#23 ·
Also, when you are paid cash under the table, you are, in effect, cheating the government of taxes.

Happens all the time. Is this right?
Our president signs a 70 billion dollar (and this is just a single example) plan while we're in major debt to help a group of racist enslaving genocidals illegally occupy land (and don't argue this if you haven't read the root texts of what keeps them together or segregated), and we're the ones cheating? Please explain the difference between government and organized crime. Stealing is stealing, and compulsory taxes is what slavery evolved into (the best slaves are the ones that think they're free).

Sure; get a restaurant closed where other employees were happy. Say hi to them in your next job then bye when it gets to the higher up what you did to your last employer. If you want to keep a job in food service and stay local; you have to be somewhat compliant. When my employer tells me to do something I know is immoral (like burning off a char-broiler and giving students headaches from carbon monoxide); I just keep my mouth shut and clean it the right way, or tell him no. I got an incident report filed for it, and requested the procedure he was demanding us to follow in writing which he refused to provide. I also asserted that the cause of the incident was improper procedure. I've had him threaten my hours, threaten to change my shift, etc. -Hasn't happened yet. Never seen anyone get fired for not obeying a boss on a procedure or order like that, but I have seen someone fired for doing what the boss tells them when it went against written company policy. When it comes to your word against theirs -they'll always win.

Also if you're going for the moral high ground; are you also working the whole time you're on the clock, and not permitted a break, never late from break, you don't use your phone on company time, and you follow all the procedures they give you, and do what you're told? You never take more than you're allowed? The moral high grounders I've seen at work are often the biggest hypocrites. Example: new building; people are getting chapped lips from being there. Co-worker grabs a pack of chap stick off the counter. Cashier pesters him about it being stealing and gets him to return it, then is seen later standing around in the busy kitchen texting on her phone when she should be working. I ask her why she's stealing from the company and she acts like she has no clue.
 
#24 ·
Cash is King in my book!

What is illegal about it specifically which law is being broke? They are not paying 1.5x rate for the 45th hour and 2.5 on stats? Thats the law in my area.

If the hours are recorded and the pay documented is the employer not allowed to pay cash? Maybe they cant use two systems?

Direct deposit, check or cash whats the difference it is the employees duty to declare their own earnings. The employer does their own accounting. Should be provable by t4 I suppose for a full time job, but private contractors and some part time will not get the paperwork just cash. If you fail to report the cash as earnings you are cheating taxes, not the employer.



Higher tax bracket scare is the biggest myth I see made by financially illiterate people. I see so many cooks say they will take less hours because they think they will just lose it in taxes if they work more. What a joke. Id love to be in the highest tax bracket. I suppose thats why I work 3 jobs. Someday.....

Good luck but have your facts when you go accusing them. May be right I just don't know laws in NY.
 
#25 ·
Here's some literature directly from the ny.gov labor page...

Pretty much explains exactly what non-exempt employees should be expecting from their employers and what employers are obligated to pay to the employees.

http://labor.ny.gov/legal/counsel/pdf/overtime-frequently-asked-questions.pdf

"Overtime Frequently Asked Questions (FAQ)

The New York State Minimum Wage Orders contain the State's overtime requirements. These requirements are in addition to those required by federal law, including the Fair Labor Standards Act (FLSA). Most employees must receive overtime pay at the rate of 1½ times their regular rate of pay for all hours worked over 40 in a workweek. Certain residential employees must receive overtime pay at the rate of 1 ½ times their regular rate of pay for all hours worked over 44 in a workweek. "

Just a side comment- the pay period in question that I am referring to was over 21 hours of overtime. At my current hourly rate, that is quite a significant amount that I lost, taxes and other deductions taken into consideration.
 
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