Employment Law Office of


Experienced Aggressive Attorney

Call for FREE Consultation




   All general labor laws apply to restaurants and bars. However, a few of those laws have raised some special issues for them.

   In the year 2000, the legislature amended the gratuity statute, Labor Code §350. It clarified how the house and servers handle tips.

   The house may not share tips with servers (Labor Code §351), and the employer must track all tips that it collects for employees (Labor Code §353). An employer cannot credit tips against wages it has agreed to pay to servers, and servers must earn at least minimum wage.

   However, an employer may require tip pooling. The tip pool arrangement must be fair and reasonable.  Only those who are in the chain of service can be in the pool.  For instance, an employer cannot require servers to include cooks and dishwashers in the pool.

   Finally, tips are taxable income. The IRS now requires all tips to be declared.  Technically, all persons who receive tips, or a share of the tips, must report it as income.  Unfortunately for certain servers, some employers allocate the entire tip to the waiter or waitress even when a portion of the tip is shared with others.  In that case, the server appears to the IRS as the only person who earned the tip.  In contrast, the employer should report shared tips and should tell the IRS how much each person in the chain of service received from the tip.

   Meal periods and rest periods are sometimes a problem in the serving industry. Typically, a server does not like to leave tables for meal periods and breaks when a tip is due from those tables.  For that reason, some servers like to skip breaks.  A few years ago, the California Supreme Court clarified the laws in that area.  (Brinker Restaurant Corporation v. Superior Court, (2012) 53 Cal.4th 1004)

   In Brinker, the Supreme Court said that employers have a duty to “provide” meal periods for its qualifying employees. The plaintiffs had argued that employers had to “ensure” that employees got meal periods.  The Court declined to place that burden on employers and found that an employer only needed to provide an opportunity to take a meal break.

   In the Brinker case, the California Supreme Court also clarified the law pertaining to rest periods.  According to the regulations, employers must “authorized and permit all employees to take rest periods.”  The Brinker Court defined the meaning of “authorize” in that context.  It said that an employee is entitled to a 10 minute, uninterrupted rest period if the employee’s shift is at least 3.5 hours.  An employee is entitled to a second rest period if his or her shift is at least 6 hours and is entitled to a third rest period if the shift is at least 10 hours long.

   Employees can elect not to take their meal periods and rest periods, but allowing them to not take them can create the appearance of violations. One method for guarding against that appearance is to keep a break log.  If the employee did not take one, the employee should explain why not on the log.  The downside of keeping a break log is the written log could potentially be used to prove the employee’s case, but, on the other hand, good management techniques can address potential problems before they become serious.


S. Ward Heinrichs, Esq.
Employment Law Office of Ward Heinrichs
4565 Ruffner Street, Suite 207
San Diego, CA 92111
(858) 292-0792
(858) 408-7543 (fax)


“Mr. Heinrichs is truly the most caring attorney I have ever met. After calling for an initial consult and leaving a message, my call was returned with in 30 minutes. He listened to me with out making me feel like a dollar sign and agreed to take on my case. I never had a problem communicating with him. He explained the process and informed me of every next step. I always knew what to expect and what time frame I was looking at. He worked hard on my case and I was happy with the outcome.” Amy L. Lakeside, CA _____________________
“This is the second time I employed the service of this firm and I got a very positive outcome from my labor issue. Mr. Heinrichs is very understanding and professional and his negotiation skills are very effective in lending a voice to any employee that has to face a well defended and lawyered up corporation. I also recommended him to a friend of mine a couple of years back and he was able to also get a decent severance package for that person.”
M. S. Del Mar, CA _____________________
“Ward Heinrichs was very effective in helping me resolve my labor issues with my company. He advised me on settlements and we received the desired outcome very quickly. He also ran through various options on his fees and let me chose the one that worked for me. He is a pleasant and professional attorney and I recommend him highly.” L R. San Diego, CA _____________________
“My name is Jeffrey Walters and I was the lead class representative in a case against Pacific Eagle International Security, Inc., a company that provided armed security guard services for the U.S. Navy. During our case, Ward Heinrichs always responded to my phone calls and many e-mails regarding the many problems we all faced with this case. We worked closely together to prove that California wage law applied to Pacific Eagle, even though the class of security guards worked on property controlled by the Navy. Pacific Eagle believed that only federal wage law applied to it. Without Mr. Heinrichs’ unwavering persistence and total command of the difficult issues in the case, we probably would never have received the money Pacific Eagle owed us. Mr. Heinrichs presented the case through facts obtained through vigorous research. After two years of litigation, Pacific Eagle finally agreed to pay $900,000.00 to settle the class action for unpaid wages, un-reimbursed expenses, penalties, etc. I received $15,000.00 for being one of the class representatives in addition to my share of the money that Pacific Eagle owed me and my fellow security guards. I am very grateful for the hard work and commitment.”
Jeffrey Walters _____________________
“Ward Heinrichs is professional and knows employment law. He is personable, always answers his phone and was available anytime I called. As a person in transition for the very first time in 25 years, he has helped me move forward without any regrets. I would recommend Mr. Heinrichs for any employment related dispute.”
JFM Temecula, Ca. _____________________