Things Your Employer Does That Are Definitely Illegal
And other suspicious behavior you should watch out for
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Watch your paychecks closely.
I once pitched a piece about La Colombe CEO Todd Carmichael—probably my favorite person in coffee to rail on—and his hypocritical employment practices. In 2017, he wrote an impassioned plea for businesses to pay their employees a living wage of $15 an hour in the Philadelphia Inquirer—only for baristas, via an anonymous spreadsheet that circulated among coffee folks, to reveal that La Colombe only paid employees about $9 an hour. This information took two years to surface. And yet, when I shared my pitch, the editor said, “But they make $15 an hour with tips.” The story was killed.
Anyone who has worked in service sees the problem here.
For starters: Tips are bad. Tipping culture is rooted in racist practices designed to pay Black people less money for their labor during the Reconstruction era. That basis in discrimination continues on today—and for as long as the practice has been with us, most people still don’t understand how tips work.
What Carmichael did was dishonest and gross, but it technically isn’t illegal to lie in an op-ed. Still, it was only the latest example in an ongoing series of a company doing shady shit with wages and tips. We shouldn’t have to wait for a cascade of anonymous workers to reveal the myriad tricks and strategies that employers use to swindle employees out of what’s owed to them.
On the latest episode of the Boss Barista podcast, I talked to Tiani Wright of Coffee and Tax, a group Tiani started to help baristas understand their financial wellbeing. One of the topics we spent the most time talking about was going over your paystub:
I think one thing that’s important for baristas to understand is very important, and not just for baristas—but we’re talking about them specifically—just understand and ensure that their paychecks are fair and accurate.
I think there was a case not too long ago that I’m actually in the process of studying— there were a couple of baristas and they filed a lawsuit against Starbucks because of the mishandling of how the tips were being “collected” from their checks. So it’s important to pay attention to paychecks.
I know that we oftentimes rely on our employers to do what’s fair—to do what’s right. But there’s a lot that we shouldn’t leave in their hands, only because of things like human error, there’s all kinds of things. Errors are the responsibility, ultimately, of the employees or the barista, so you’ve gotta be sure that the information on your paystub matches the information on your W2.
This discussion made me rethink almost every weird or questionable conversation I’ve had with past bosses about wages, tips, overtime—about money, full stop. And as I looked back on my working history, I came across a number of incidents that I didn’t know were suspect at the time (including things I had done myself!). Some are upsetting—and some are just plain illegal.
Here are just four of those moments:
1. Your employer cannot dock your tips. According to the Department of Labor, tips are the property of an employee. Your employer cannot take your tips for any reason whatsoever.
At my very first coffee job, we pooled tips (tip pools exist in their own weird gray area, but we received so little in tips at this job that it barely mattered). If we broke something at work, we’d have to pay for it out of our shared tip pool. I remember one week where we had a string of clumsy mistakes, and broke a few coffee-brewing devices—and our tips were docked.
VERDICT: This is 100% illegal. If your employer does this, document it and, if you feel safe enough to do so, report them to the Department of Labor.
2. Your employer has to pay overtime. Overtime pay is different in every state, but generally speaking, if you’re an hourly employee and you work more than 40 hours a week, you’re entitled to overtime pay.
I had a job where we were paid in cash, which sounded great … until one week when I picked up two extra shifts and found that for the almost 60 hours I had worked, I was still paid at the same $9 hourly rate. My boss told me that because we were paid in cash I wouldn’t get overtime pay.
VERDICT: Yep! Illegal! Getting paid in cash is not illegal, but it doesn’t change the terms of overtime pay.
3. It’s important to know if you’re classified as an employee or a contractor. When I got my first writing “job,” I was stoked because I took home my full paycheck—there were no taxes taken out. When I went to file my taxes a few months later, I was floored by how much I owed.
As Tiani points out, every employee contributes 6.2% of their paycheck to fund social programs like Social Security and Medicare. If you’re an employee, your employer pays another 6.2% into that fund. When you’re an independent contractor, you have to pay for both the employer and employee contribution.
There’s virtually no service job where someone should be considered an independent contractor, and yet I have heard of instances where servers and baristas have been classified as independent contractors—the IRS has a good checklist to see if one should be considered an employee or independent contractor if you’re unsure.
VERDICT: Considering my writing and editing job ended up being a three-year-long “contracting” position, I think if I had challenged the conditions of my classification as a contractor, I might have prevailed. I never challenged it, though, and just got used to marking off a percentage of my pay for taxes in the future. I did, however, challenge a noncompete agreement, which brings me to…
4. Your employer can’t make you sign a noncompete agreement. OK, maybe they technically can, but most are unenforceable. Noncompete agreements, which are a broad category of contracts designed to keep employees of a company from going to work for a competitor, are designed for folks working with proprietary information. It’d be totally appropriate for an engineer at Apple working on the next iPhone to sign a noncompete. It’d be totally inappropriate for a service worker to sign one.
And yet, I’ve heard of so many employers barring their employees from picking up second jobs at another restaurant or cafe, or even worse, asking folks to sign agreements that they won’t work in shops within a certain mile radius or a given timeframe. Signing a noncompete typically hampers your ability to work a second job or find work in your neighborhood after you leave a position.
Most noncompetes are hard to implement, mostly because, as a service worker, you’re not taking trade secrets with you from one job to the next. You’re also not making enough money to justify any restrictions on your ability to find work. The noncompete agreement I signed asked me not to publish work for any other publications within our industry, which I challenged and had amended.
VERDICT: Not illegal, but really hard to enforce.
Of course, this is just the tip of the iceberg when it comes to employer misbehavior—I’m only detailing the experiences that I’ve personally had at work. What my conversation with Tiani taught me is to be vigilant, to ask questions, and to know exactly where all your money is going—and why. If you haven’t listened to the episode, please do, or check out the transcript here. Her advice will help prepare you and protect you from this kind of mistreatment in the future.
Before you go…
I bet many of you listened to the first two episodes of Reply All’s breakdown of the rise and fall of Bon Appétit—and then saw the subsequent fallout when it came to light that many of the employees at Gimlet, which produces Reply All, also experienced discrimination from the folks producing the series. James Green helped launched another Gimlet show, The Nod, and detailed his experience with trying to speak up against racism at work, and how his concerns were routinely ignored.
I also bet you’ve all seen “Framing Britney Spears.” The documentary loosely argues that Britney was expressing herself freely before her conservatorship was put in place in 2008—but in a rebuttal article in The Cut, Tavi Gevinson argues that Britney, subject to the pressures of superstardom and marketability from her label, was never in control of her image in the first place. (Content warning: Sexual assault.)
When We Were Orphans is the second book I’ve read by Kazuo Ishiguro. It’s a story that feels like revving the car over and over—it’s almost about to start, but the narrator continues to get caught in his own memories, and the details of his life that are only salient to him. It’s a wonderfully told and uniquely challenging story.
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