Good friend of Oregon Wine Marketing and talented lawyer Judy Parker wrote this for our website. We are concerned that Oregon wineries might get into trouble by treating their tasting room employees like they are wait people (tipped servers) and fall afoul of Oregon Employee regulations. And as we know, that can be a very expensive mistake.
Here’s Judy’s expert advice:
I’ve noticed a dangerous trend these past few months in tasting rooms — erroneously taking away the meal periods to which most tasting room staff are entitled under the law by treating them as a tipped beverage server.
I know what you’re saying — Judy, wine is a beverage. Duh. But wait and hear me out because the failure to properly implement the tipped server rule can result in significant penalties.
Here’s the basic rule: an employer must give a half hour meal period to all hourly employees who work at least six hours in a day. There are only four incredibly narrow exceptions to this rule; one of those exceptions is the tipped server exception. But it probably doesn’t operate the way you think it does.
First, the law requires that the employee be a regularly tipped food and beverage server. This doesn’t mean the occasional dollar bill given to your staff by a nice customer or club member. It means tips are regularly received (most often via credit card transactions, like you’d find in a restaurant), reported to you, and in turn reported by you to the IRS.
Second, the law requires the employee to approach the employer to request to work through a lunch period — not the other way around. In fact, for the employer to approach the employee is strictly and clearly against the law. If you (the employer) request that an employee sign a request to waive meal periods, you have broken the law. The Bureau of Labor and Industries can penalize you $2,000 each time this happens — each employee, for each day of continuing violation.
Third, the employee must fill out a form (prepared by BOLI and found online) which the employer must keep for six months beyond the end of the employment relationship.
Let me repeat: Giving a lunch waiver form to an employee who is not a regularly tipped meal and food beverage server is illegal in Oregon.
I firmly believe that a small investment of time and money will prevent a much more costly mistake down the line, If you are interested in reviewing your employment practices in your tasting room, shoot me an email or give me a call.
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J.A. Parker Law Firm LLC
The Winemakers’ Lawyer