Here's a Tip: No Work Without Pay

By Kenneth Bredemeier
Special to washingtonpost.com
Monday, July 24, 2006; 2:43 AM

Everyone knows about summer internships -- work, for no pay, often performed by college students whose parents can foot the bill for room and board.

But in the life of work beyond college, can employers get away without paying a worker, even if they call it "training?" That's what this worker and her husband want to know:

Last week, my wife interviewed for a waitress job at an ethnic restaurant near our house in Maryland. The owner told my wife that, before they would start paying her, she would have to go through a 'training period,' during which time she would come in and work, just as a regular employee, but not get paid anything, not even tips. This sounded very fishy to us.

She went to that restaurant for three days, but then we decided that it just seemed silly for her to work for free. Apparently there is one guy who has been waiting tables there for three weeks and still isn't being paid. It seemed to us like they are trying to take advantage of people who are new to the country.

Is this legal? I've never worked in the food service industry, but in the industries I've worked in, employers had to pay their employees, even if they weren't fully trained yet.

Fishy indeed, says Diane Seltzer, a Washington-based employment attorney.

"It may sound flip," Seltzer says, "but my memory is that Lincoln freed the slaves. I don't know of any law that allows an employer to have an employee work without paying them."

It's cut and dry in most workers' cases. An hourly minimum wage applies to all; nationally, it is $5.15, and it is $6.15 in Maryland. Trainees, meanwhile, can be paid less cannot receive less than the minimum wage.

Restaurant workers do fall into a special category, however, in that the federal law calls for them to be paid $2.13 an hour and in Maryland $3.08 an hour under state law. In both instances, it is assumed that tip earnings would augment totally hourly pay to bring the total to (or beyond) the minimum wage. If not, restaurant management is obliged to make up the difference.

One caveat: In Maryland, restaurants grossing less than $250,000 annually are exempt from paying the minimum wage. Still, says Seltzer, that the establishment might still be covered by the federal minimum wage if, for example, it engages in interstate commerce -- if it provides foodservice to out-of-state locations, for example -- in any way.

And whatever the case, says Seltzer, some payment is definitely due the worker: "You can't not pay someone."

To get to the bottom of this, she suggests, inquire with Maryland's Department of Labor for more information.

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