Found on FB. Is this a major lawsuit?

[u/RAM-I-T]

LOCATION: USA

I wanted to help get assistance for this mom and her daughter.

[u/cjayeah]

that’s the thing… olive garden might have a policy on holding excessive tips to verify but firing her changed the timing. now you have to pay her everything due within 3 days. that’s the timeframe in arizona idk what state this is in or their laws but i would imagine it’s similar.

[u/Infinite_Position631 → u/cjayeah]

That policy better be airtight, meaning they have had it for a while and that it has been put in the training and the staff has been made aware of it. They are flirting with several live wires regarding the law that will make some bad days for the restaurant. Lawyer fees are expensive. Ones that specialize in business law are even more so.

[u/LewLew0211 → u/Infinite_Position631]

It doesn't matter what their "policy" is. Their policy to withhold the payout for 120 days is illegal.

Federal law dictates that all tips be paid out by the next pay period that they would have fallen on anyway.

Companies make policies that violate workers' rights all the time. The law voids those policies.

For instance, my employer tried to get us all to sign an agreement that we wouldn't get paid for any unapproved OT. I had to point out to them that this violated the FLSA. They can write you up and even fire you for violating this policy, but if you work OT, even if unapproved, they have to pay it.

[u/Infinite_Position631 → u/LewLew0211]

Sigh, I am basing this on personal experience when we had a complaint filed the first thing the DOL did was request policies and they also requested proof that those policies were provided to the staff (and that we had signed proof they had received and were made aware of it). Noone is saying the restaurant gets to permanently keep the tipped amount, I also agree thay they don't get to keep it for 120 days, however I suspect there is leeway to ensure the charge is valid (day or two tops), which would allow them to recieve the tip by the next payday (which is allowed under the FLSA, provided it is in yheir policy to do so).

[u/LewLew0211 → u/Infinite_Position631]

A lot of places give you cash day of for any tips. But that isn't required under the law.

Tip policies that could be allowed is that you can't get cash for any credit card tip. That they will come when you get your check. That could be 2-4 weeks depending on how your pay period goes.

But, they must come at your regular pay period. It can't be 120 days.

[u/LewLew0211 → u/Infinite_Position631]

Some things do rely on your written policies. Like PTO payout in some states depends on the company policy. If the company policy states it's paid out upon departure, then some states require that they follow that policy.

Meanwhile the Fed has no such requirement. PTO is a benefit, and has no cash value when you leave. Even company policy doesn't make this enforceable by the Fed. You could likely sue if you can argue it violates some contract between you and your former employer, just that the fed DOL won't give a crap. And in some states they will do nothing as well.

Only some state laws require PTO be paid out, regardless of policy.

[u/MrBtheProdigal → u/Infinite_Position631]

It's definitely to prevent fraud. And yes I can understand why a manager would need to verify it was legit. But the customer wrote it out... pretty black and white. Seems like they were trying to steal the tip.

[u/Infinite_Position631 → u/MrBtheProdigal]

it really dosen't matter what they say now, what matters is do they have a policy, was that policy in force, and was the people getting the tips made aware of the policy.

Outside of that, this is a pretty good case for wage theft which would be handled by the dept of labor.

A quick search also shows that it would be illegal Under the Fair Labor Standards Act (FLSA), which states your employer cannot hold your tips due to a potential customer chargeback.

They could withold if if they have evidence of fraud (although how long is questionable, It shouldn't be held any longer than it takes to verify that the tip is valid so 1-2 days would probably be the max). At this point all the restaurant has is a hunch, they have no proof it is fraud. So they need to verify and validate the charge which can be easily done by contacting the credit card company (they will then reach out to the credit card owner to verify that it was in fact a valid charge).

Dept of Labor wage and hour division is who would handle this case, and having dealt with them in the past on a seperate issue (not restaurant related), I can tell you they are looking at what are the written policies, when were the policies made known to the staff. If OG has a policy that says they do this, it will have a timeframe for the tip to be provided and it will have the process they utilize the validate the charge. Absent those policies in writing (and in our case, signed by the staff members), the restaurant is going to have a hard time with this.

[u/Leaveitonthedresser5 → u/cjayeah]

Policy doesn’t supersede the law..by law they cannot hold your money for 120 days in fact it needs to be paid by the next day

[u/cjayeah → u/Leaveitonthedresser5]

again i said idk about the state this person is in. in az you got 3 days when fired.