What can I do as an unemployed restaurant worker during the coronavirus?
If you were a restaurant or service industry worker who is now unemployed, please first apply for unemployment assistance. You can do so here: https://www.ezarc.adws.arkansas.gov/
To be eligible, you must be:
Physically and mentally able to perform suitable work,
Available for suitable work,
Making a reasonable effort to find work,
Free of participation or direct interest in a labor dispute, and
Free of disqualification
ABLE TO WORK means being physically and mentally able to perform work similar to work you performed in the past or other work for which you are fitted by experience and training to perform and have a reasonable expectancy of obtaining.
AVAILABILITY FOR WORK means being ready to accept work at once, and there are not circumstances, personal or otherwise, which would prevent you from accepting suitable work.
REASONABLE EFFORT TO FIND WORK means making personal efforts to secure suitable work by contacting persons with hiring authority, union local, etc., or doing those things reasonable for you to do in regard to your occupation which would result in your finding employment as soon as possible.
After a reasonable period of time, you must expand your efforts and seek work in related fields which utilize a lesser skill.
What if I think I am owed more money from the restaurant even after unemployment?
Employers remain prohibited from keeping tips received by their employees, regardless of whether the employer takes a tip credit. In addition, employers electing to use the tip credit provision must ensure tipped employees receive at least the minimum wage when direct (or cash) wages and the tip credit amount are combined.
If an employee’s tips combined with the employee’s direct (or cash) wages do not equal the minimum hourly wage, the employer must continue to make up the difference For further explanation, see here: https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/fab2019_2.pdf
You may be owed minimum wage or overtime payments if a tip credit/pool is handled unlawfully.
Should I be paid more a a server? It depends on what Duties A Server Can Perform Under the Tip Credit Rules
Whether you may be owed money depends in part according to the Department of Labor on whether the extra duties assigned to you as a servers are directly related to the servers’ “tip-producing occupation.”
The U.S. Department of Labor recently re-issued a previously-withdrawn opinion letter dealing with this subject. This Department of Labor opinion letter considers the job duties listed in the Occupational Information Network database, O*NET, available at https://www.onetonline.org/, to determine whether duties are directly related to a tip-producing occupation.
Tipped employees can perform any of the job duties listed in the “tasks” section of the Details report for their occupation in the O*NET database, without regard to whether they involve direct customer service, so long as the duties are “performed contemporaneously with the duties involving direct service to customers or for a reasonable time immediately before or after performing such direct-service duties.” For “waiters and waitresses”, this includes such tasks as setting up and cleaning tables and restrooms, among others. (See the O*NET report for waiters and waitresses for the full list.) Conversely, employers cannot take the tip credit for any work not included in the O*NET task list.
Duties count as “directly related” to a server’s tip-producing job if performed while a server is also waiting tables, or immediately before or after the meal service.
However, if you as server were called in to clean the dining room and restrooms on a day when the restaurant is closed, you would likely have to be paid the full minimum wage for that time.
Likewise, a server who is asked to help enter payroll on a slow night may have to be paid at the full minimum wage for any time spent on that work, because entering payroll is not among the tasks included in the O*NET task list.
It is important to note that DOL opinion letters represent the agency’s interpretation of the law at the time of the letter. They are not themselves legally binding. Courts may or may not agree with the DOL’s interpretation of the law.
In light of these uncertainties, it is important to speak with an employment law attorney familiar with wage and hour laws and your specific situation.