December 8, 2023

Immigration Marriage

Feel Good With Immigration

These are your rights as a restaurant worker in Pennsylvania

In 2017, Veronica Perez was working at a Philly restaurant as a prep worker. In the beginning, everything seemed fine, but as time went by, her supervisor started touching her inappropriately. She tried to report the abuse, and was met with retaliation. In the end, she decided to quit.

Unfortunately, according to Natalia Nicastro, coordinator for the local Coalition for Restaurant Safety and Health (CRSH), sexual harassment is one of the biggest problems for restaurant employees, but far from the only one. But now, both workers and organizations are coming together to educate people about their rights and how to enforce them.

Seth Lyons, staff attorney from Community Legal Services (CLS), says there are no specific laws that apply only to restaurant workers. But there are a lot of specific issues that come up if you work in a restaurant that are important to know about.

If you are one of the 79,000 people employed in the city’s food industry, here is what you need to know about your rights as a restaurant worker:

Your tips are not meant to take the place of minimum wage. A tip is a gratuity that the customer gives you for your service. Under the Fair Labor Standards Act (FLSA), if you get tips, your employer still has to pay you at least $2.13 per hour. This hourly rate, plus your tips, need to add up to at least minimum wage.

In Pennsylvania, minimum wage is $7.25 an hour, but employers are allowed to pay you as little as $2.83 per hour if you make at least $30 a month in tips. This is about to change: The state is raising the monthly tip threshold to $135 a month to adjust for inflation, but the law isn’t yet in effect.

Unfortunately, “tips don’t always show up on your paid stubs, so it’s harder to keep track of, and easier to violate your rights,” says Lyons. He recommends keeping track of your tips.

If you are not making the minimum, talk to your supervisor. If they won’t solve the problem, it may be considered wage theft, under federal, state, and local law. In Philly, you can file a complaint with the Philadelphia Department of Labor.

No. The FLSA prevents restaurant managers, supervisors, or owners from keeping your tips. In Pennsylvania, tip pooling — where everyone combines their tips and splits them — is allowed. But there are restrictions on who can share the money, says Lyons. Dishwashers and cooks who don’t get their own tips legally aren’t supposed to be part of tip pooling, though this is a not uncommon way to support back of the house staff.

And if your supervisor tries to keep your tips, that qualifies as wage theft.

Yes, but only if you work for a big franchise restaurant in Philadelphia. The city’s Fair Workweek law gives you the right to have a more predictable work schedule, but it doesn’t cover most local restaurants. To be protected, you have to work for an employer with more than 250 employees and more than 30 locations worldwide.

If that’s the case, your supervisor has to give you advance notice of how your schedule for the week will look. If they want to schedule you for extra hours, you have the right to say no. Plus, you are entitled to a rest period of nine hours between shifts or a $40 payment, and to be paid if they suddenly change your schedule. Here’s more about how the Fair Workweek law works.

Help make this guide better
See something missing? If you spot an error or omission in any of our guides, please let us know by emailing us at [email protected]

Yes. You have the right to be paid for overtime, even if you are a tipped employee, both under federal and state law. So, you must be paid at least one and one-half times your regular rate for each hour you work beyond 40 hours a week. If you get tips, your tips are considered part of your regular rate, so they should be used to calculate your overtime.

Yes, no matter your legal status, you are protected from harassment at the federal, state, and local level.

  • Federally, Title VII protects you if you work for a company that has 15 employees or more.

  • In Pennsylvania, the Human Relations Act (HRA) protects you as long as your employer has at least four employees.

  • In Philadelphia, the Fair Practice Ordinance (FPO) protects you if you work for a company with more than one non-family employee.

Although you are entitled to work in an environment free of sexual harassment, it’s a common problem in the restaurant industry, says Perez. But there are things you can do, says Lyons.

If a coworker or customer harasses you, “follow the chain of command, tell your employer,” says Lyons. “You might not feel comfortable doing that, but they are only required to protect you if they know about it,” he says. Lyons suggests sending a follow-up email after the conversation, to document that you made them aware of the problem. If your employer refuses to take action after that, CLS can help, by writing a letter to your employer, and helping you file a sexual harassment complaint.

If the one harassing you is your boss or the owner of the restaurant, you don’t have to leave. You can sue or file a discrimination complaint, and CLS can help with that, too.

What happens if my employer retaliates?

In Perez’s case, it was her boss who kept trying to touch her inappropriately. “I didn’t want to go to the walk-ins anymore, because I was afraid that he was going to follow me in, and there were no cameras there,” Perez says. 

She is among the 54% that report harassment, but her employer did not help. When she came forward, her supervisor’s manager told her supervisor, who retaliated against her by loading her up with work. After a second complaint, the manager changed her to night shifts, but it didn’t prevent further harassment and retaliation. Ultimately, she decided to quit. At the time, she didn’t know that it’s illegal for your employer or bosses to retaliate against you for raising a complaint. Now, she is part of the Coalition for Restaurant Safety and Health (CRSH), which works with CLS and helps educate restaurant employees about their rights. “Oftentimes we don’t know what to do,” says Perez. “If I would have the knowledge or the support I have now, it would have given me the strength to stop him, instead of having to leave because I didn’t see a way to solve it,” she says. 

Her advice: Ask for help. If you are experiencing sexual harassment or don’t know your rights as a restaurant worker call 267-571-6720 to get help from the coalition. 

If you are one of the 9% of restaurant employees who are undocumented nationwide, know you have the same protections as documented workers.

“The situation of vulnerability [that] undocumented workers experience adds an extra layer on how they feel about enforcing their rights,” says Natalia Nicastro, from CRSH. So it’s important for you, as an undocumented worker, to know that your “immigration status basically does not matter for discrimination laws,” says Lyons.

If your employer retaliates against you, forces you to keep working in unsafe conditions, doesn’t pay you for long periods of time, or threatens you because of your immigration status, that can be considered threats of coercion and can actually help provide you permanent legal status in the U.S.

Additionally, the Department of Labor doesn’t share information with immigration authorities. And in some cases, adds Lyons, if there is an issue with immigration authorities, the Department of Labor will tell them you are in the middle of a labor dispute and that can pause and sometimes completely stop the deportation process.

Can I file a complaint if I’m undocumented?

Reyna (who asked that we not use her last name because of her immigration status) has been working in Philly restaurants for a decade. In that time, she has witnessed and experienced harassment many times. While working as a prep cook, the owner of the restaurant repeatedly asked if she was a virgin, so that he could arrange a marriage between her and one of his friends. “Being undocumented played a role in me feeling that I could not report,” she says. Reyna was one of the 31% restaurant workers who don’t report being harassed. She now works with CRSH to educate others. If you are undocumented “you have the right to be treated with respect. Your work is valuable and you are worth it. You are not alone,” she says.

The Occupational Safety and Health Administration (OSHA) and the Family and Medical Leave act, protect your right to be safe at work and leave if you are sick.

At the restaurant Reyna worked for, the owner asked workers to prep ingredients faster so they would have to work fewer hours. The pressure was so intense that Reyna cut her finger deeply. She looked for Band-Aids, but there were none; her coworkers told her to go to the ER, but the owner said: “put some coffee on it, and keep working.” Bleeding, and in pain, she decided to leave.

This situation was handled illegally. Under OSHA, restaurants are mandated to keep first aid kits on site. And if you need to go to the ER or you are just generally sick, the Family and Medical Leave Act gives you the right to do so.

First, identify the working conditions you want to change. You might ask your employer to protect you from sexual harassment, pay you on time and accurately, or other things you are entitled to. The restaurant is obligated to provide that, and they can’t retaliate against you or fire you for complaining.

Second, talk to your boss. For Lyons, workers coming together to advocate for themselves can be the most effective way of making change happen. Both he and Nicastro recommend you go, as a group, to talk with the chef, manager, restaurant owner, or your immediate supervisor.

And, if it’s a private or sensitive matter (like sexual harassment), your coworkers don’t want to come forward, or your employer won’t take action, you can go to CRSH or Community Legal Services for help.

Can my employer fire me for complaining?

No. Being fired after raising a complaint is considered a form of retaliation, which you are protected against as long as you are complaining about something you have a legal right to.

If you’re complaining about something else, here’s a tip that can help: Under the National Labor Relations Act, there is a way to raise a workplace issue with your employer and still be protected from being fired: Don’t go alone. If you go to your manager or employer, with at least one coworker, to  complain about working conditions, they can’t fire or retaliate against any of you. This doesn’t guarantee that your employer will give what you asked for, but “it’s a really powerful organizing tool to improve working conditions,” Lyons says.

If you work in Philadelphia, you can file a complaint with the Philadelphia Department of Labor (PDL).

Once you file your claim, PDL will investigate and contact your employer — while trying to keep you as anonymous as possible. There is no court process involved, and immigration authorities are not called. And you are protected from retaliation at work.

The department has “gotten stronger in the last years, and they have been able to successfully resolve issues,” says Lyons.

You can file a claim without a lawyer. But, despite describing it as a “very simple process,” Lyons advises you call Community Legal Services if you need any help or have any questions.

Depending on what your complaint is about, there are two offices at the PDL that can help.

Philadelphia workers have more protections than the rest of the state. But, if you work outside of the city, you are protected by PA laws and can file claims with the state.

  • To file a sexual harassment complaint contact your county’s Pennsylvania Human Rights Commission. There are three main offices and they each serve multiple counties. The complaint must be filed in the county where the sexual harassment took place. You have 180 days to file after the last incident.

    • For the Harrisburg Regional Office (serving 38 counties including Adams, Lancaster, and York) call 717-787-9780

    • For Bucks, Chester, Delaware, and Montgomery call the Philadelphia Regional Office at 215-560-2496

    • For the Pittsburgh office (serving 23 counties, including Allegheny, Fayette, and Westmoreland) call 412-565-5395.

  • For minimum wage and overtime complaints, you can file with the Pennsylvania Department of Labor and Industry. All claims can be mailed to the Harrisburg office. The state will redirect them to a district office base on the restaurants county. You can also file online.

  • If you are experiencing discrimination base on your race, sexual orientation, gender, religion, age, GED status, or disability, you can file an Employment Discrimination complain with the Pennsylvania Human Rights Commission by calling 717-787-4410, or one of their three main offices.

link