The other day I was talking with my girlfriend and she was telling me about a friend who was applying for jobs at restaurants. Apparently, he was applying for a job as a waiter and they asked him to do a “stage”. I had never heard the word used that way before and I didn’t know what it meant. My girlfriend told me a stage was when a restaurant asks someone to work for free, as a trial. And it happens all the time!
Wikipedia’s entry defines “stage” as “an unpaid internship when a cook or chef works briefly, for free, in another chef’s kitchen to learn and be exposed to new techniques and cuisines.” The word comes from the french word stagiaire meaning trainee or apprentice. The article also notes “A server or waiter can also “stage” in a restaurant for much the same purpose.”
Sure, maybe I can understand a chef coming into a kitchen to help with a service or to help prep in order to learn a new technique. But it seems like restaurants are using staging to try candidates out for a job and are not designed to teach anything. And don’t get me started on waiters or servers being asked to stage. Are they supposed to be learning some new innovative waitering techniques?
The law is pretty clear. All employees of a business covered by the Fair Labor Standards Act(“FLSA”) must be paid at least $7.25 an hour. Certain tipped employees may be paid less than $7.25 per hour (as little as $2.13 is allowed) as long as the tips are enough to make up the difference between the tipped employee’s hourly pay and $7.25 an hour.
In most cases, if a restaurant is asking you to work a service where customers will be coming in and paying money for the food then you need to be paid. The law does not allow employer and employee to agree to an unpaid trial period where you work for free in order for the employer to test you out. It doesn’t matter if it is “only” one shift or service. Free work is free work.
Under federal law there may be circumstances where someone could work free for a day, or even longer, without breaking the law. Because the measurement period for calculating minimum wage under federal law is the work week, a person could conceivably work “free” days but still make an effective hourly wage of at least $7.25 that week. The person would have to be paid on a salary basis which would require the person be paid the same amount even if they work more hours on some days than others. The salary would have to be enough so salary divided by number of hours worked in the week is greater than $7.25.
In some states even if the employee makes a salary that pays an effective hourly rate of more than the state minimum wage may have violated state labor laws which are allowed be tougher than federal law.
Because the stage is being used to test job applicants it stands to reason that some candidates won’t make the cut and get offered a job. Some people will have worked for free and in return received absolutely nothing in return.
If a “test” or “trial” involves the employer making money then you should too. Restaurants are using ideas about Europe and “how they do things in the best French restaurants” to get unpaid labor. Just because something was ok in 19th century France doesn’t mean it is ok in 21st century America.
When you consider almost all employees in the US are “at will” the employer can fire them at any time for any reason or no reason at all. Why is there a need for a “trial period”? It’s not like it’s easier to fire an employee during some made up trial period.
The restaurant industry seems to run on constant wage theft. From the application process to paying an employees their final paycheck it’s like some restaurant owners can’t resist short-changing workers whenever they can. One thing that helps unscrupulous owners get away with stealing from employees is the amounts involved can be relatively small. For example, if you worked an entire 8 hour day for free, 8 hours at $7.25 is $58. Even with liquidated damages, a penalty that courts may asses against employers who violate the FLSA, the amount owed is still only $116 (liquidated damages are an amount equal to the unpaid minimum wage or overtime). It doesn’t make much sense to pay a lawyer potentially hundreds of dollars an hour to get back $116.
The Fair Labor Standards Act has a number of provisions that are supposed give lawyers an incentive to take on cases where damages are low. Similar cases, like when an employer doesn’t pay all his line cooks overtime, can be consolidated in to a single collective action. As I mentioned above, there are liquidated damages. Perhaps most important, the FLSA has a “shall pay” fees and costs provision meaning a successful plaintiff (the employee) will awarded an amount for the costs and legal fees spent to recover the unpaid minimum wage or overtime. This means a lawyer can take a small value case knowing the court will award an amount to pay for the time it took for her to recover the money for her client.
If you live in Georgia and have ever worked a trial day, week, month, whatever…call or email Attorney Ben Kandy. Ben is an employment lawyer in Georgia located in Decatur, just outside the City of Atlanta. (678) 824 2251. Call or email Ben about any of your Georgia employment law needs.