(Post has been updated to note a legislative development.)

Running a restaurant is hard. It’s long hours, short tempers and fickle customers.

But add in those wage & hour laws? What a headache.

And there are lawyers out there who know it. In fact, there are some that rest their business model on seeking out restaurant workers that can be used as representative plaintiffs in class actions.  Moreover, they use the internet — quite legitimately in most cases — to find them.

Indeed, in New York, one enterprising firm has put up a whole website entitled WaiterPay.com to educate workers on their rights.  

If that weren’t enough, the United States and the Connecticut Department of Labor both have divisions that continue to investigate aggressively these industries for violations.

I’ve been following some of the new lawsuits that have been filed against restaurants and have notice a trend — we’re seeing more lawsuits claiming that waitstaff doing non-service work haven’t been paid minimum wage.

Let’s back up.  What am I talking about?

Under some conditions, restaurants can take a credit towards minimum wage for some employees who receive gratuities.  According to the CTDOL, in order for an employee to be eligible for a tip credit, he or she must be engaged in performing “service” duties. What duties apply?

  • Taking food and beverage orders from patrons.
  • Bringing the orders to the table or booth.
  • Cleaning up the immediate area of service.
  • Filling the condiment containers at the tables or booths.
  • Vacuuming their own immediate service area.
  • Replacing the table setting at their own service area.

But on the flip-side, employers, according to the CTDOL, may not take a tip credit during the time which any employee is performing non-service duties such as the following:

  • Cleaning the rest rooms.
  • Preparing food.
  • Washing dishes.
  • Host or Hostess work.
  • General set-up work before the restaurant opens.
  • Kitchen clean-up.
  • General cleaning work.
  • Waiting on take-out customers.

The CTDOL Wage Order also prohibits the taking of a tip credit on “countergirls, counterwaitresses, countermen, counterwaiters.”

And compounding matters more: Those employees serving food or beverage to patrons seated at tables or booths also are not subject to the tip credit if they do not customarily receive gratuities.

How can an employer comply if its staff does both service and non-service duties? (Somewhat) easily – by figuring out the amount of time spent on each.

That might mean that for the hour than an waiter works setting up stations before the restaurant opens (say from 4-5 p.m.), the employee should receive at least minimum wage. Then for the next 4 hours waiting on tables, the employer can take a tip credit of 31 percent of minimum wage.

But even that has a caveat — the time by the employee should typically be segregated on the time record in order for an employer to take advantage of that.

What happens if you don’t? The penalty – at least the one sought by lawyers representing waitstaff – may be that the restaurant will not be allowed to take any of the tip credit, entitling the employee to minimum wage for all hours work and a doubling of damages beyond that.  Add attorneys fees and interest, and you can get a picture of a number with a whole bunch of zeros after it.

BUT (and there’s always a “but”, from lawyers, right?), maybe this isn’t the rule after all.

Because buried deep in a bill that just passed the legislature, is a provision that may just make the whole thing moot.

More on that in my next post.