No Good Deed Goes Unpunished


By: Lisa Gorman
Restaurant servers can earn as much money as attorneys.   Take a client of mine, for instance, a high end restaurant in the Bay Area.  This small establishment staffs two servers per shift, each of whom earn $9 per hour and up to $300 in tips in a 6 to 7 hour shift.  Servers working 5 nights a week earn over $90,000 per year, a salary commensurate with many white color jobs.
I recently defended this restaurant in a wage and hour law lawsuit.  California law requires restaurant servers receive an off-duty 30-minute meal break prior to their 5th hour of work.  To be legally compliant, the owner would have had to staff a third server to relieve the other two for their breaks.  The original servers would then earn 1/3 less each night. As a courtesy, my client agreed not to hire a third server at the request of his staff.  Instead, he provided complimentary meals at the end of the servers’ shifts.  That good deed cost him over $100,000 in back pay, penalties and attorney’s fees in a Private Attorneys General Act case brought by one server on behalf of all similarly situated employees.
The problem with this antiquated legislation is that, except in extraordinary circumstances, a non-exempt employee’s right to an off-duty meal break cannot be waived.  This rigidity in the law precludes small business owners with good intentions from making adjustments for the benefit of their employees.
Last year, the California Supreme Court loosened the reins on the meal break laws in Brinker v. Superior Court by holding employers must relieve employees of all duties during meal periods but need not ensure they perform no work.  While this is progress, we have a ways to go before the meal break laws enacted during the era of factory-worker abuse catch up with modern business practices.