Help Wanted: Eatery must pay for work done

By federal labor law, if a dining establishment By federal labor law, if a dining establishment allowed waitresses and others to work, they must pay them, no matter if that restaurant is facing closure for lack of business. Photo Credit: iStock

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Carrie Mason-Draffen Newsday columnist Carrie Mason Draffen

Mason-Draffen, a business reporter, writes a column about workplace issues.

DEAR CARRIE: My daughter works as a waitress at a local restaurant in Farmingdale. The owner has said that business is bad and the restaurant may have to close. He has also blamed waiters and waitresses for the slack business and has refused to pay them. I don't see how he can do this. What recourse does my daughter have to collect the money she is rightfully owed for working?

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-- All Work, No Pay

DEAR ALL WORK: It's interesting how the timing of such announcements always seems to work in the employer's favor, as in after the workers have already put in the hours. But the bottom line is that since the restaurant allowed the servers to work, it has to pay them. Failing to do so is a clear violation of federal labor law. For more information, call the U.S. Labor Department at 516-338-1890 or 212-264-8185.

DEAR CARRIE: I work as a cashier at a local retailer. After four hours of work, I have to go to the bathroom. But the mangers give me a hard time. They often tell me they have no one to take over for me. It's not that my bathroom breaks are long. I'm never gone for more than five minutes. Are there any laws requiring the company to give us bathroom breaks when we need to go? -- Potty Break

DEAR POTTY BREAK: You have raised a sensitive issue with employers, whose complaints about restroom breaks have been over what they perceive as employee abuse. And believe it or not, while employers have to provide bathroom facilities, the law is less clear about what is considered "reasonable" access to them. So the U.S. Occupational and Safety Administration, which enforces workplace safety and health laws, has tried to clarify the law over the years.

Here is what the agency said in a 1998 memo: " . . . this standard requires employers to make toilet facilities available so that employees can use them when they need to do so. The employer may not impose unreasonable restrictions on employee use of the facilities. OSHA believes this requirement is implicit in the language of the standard and has not previously seen a need to address it more explicitly. Recently, however, OSHA has received requests for clarification of this point and has decided to issue this memorandum to explain its position clearly."

In a letter issued in 2003, OSHA provided more guidance to its employees on how to determine if a company's potty policy violates the law.

"The interpretation requires OSHA's compliance officers to evaluate employer restrictions on a case-by-case basis, giving careful consideration to such factors as the nature of the restriction, including the length of time that workers are required to delay bathroom use, and the employer's explanation for the restriction."

OSHA has tried to find a balance between employees who have to go and employers who feel that workers use facilities too often and for too long.

"The standard was not intended to be so restrictive as to prevent managers from managing abuse of work time," said Tony Ciuffo, who heads OSHA's Long Island office in Westbury, "but instead provides that reason should be applied."

The upshot is that you have to be allowed to use the restroom, and if you believe your company's policy is too restrictive, contact OSHA at 516-334-3344 or 718-279-9060.

For more on OSHA's regulations regarding employees and bathroom use go to http://1.usa.gov/Tt4eJs and http://1.usa.gov/VvaaIy

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