The One Joke We Don’t Need to Hear Again This Winter

Most of the country is in a deep freeze and everyone is colder than a witch’s tit.(Incidentally, a witch’s tit is pretty darn cold. If you don’t believe me, you should check out the director’s cut of The Wizard of Oz where we see the Wicked Witch of the West and Glinda, the Good Witch of the North shoot icicles from the breasts in a war over the ruby slippers. Ultimately, the scene was cut, but you can still see it here.) Anyhoo, as we servers make our way through a sea of black coats and scarves that are piled in our station because customers think that the table next to them was placed there to hold their winter belongs, there is one joke we all keep hearing over and over again. It’s not a funny joke, nor is it original. We hear it all day, every day and by the tenth time, we can no longer muster up the energy to even pretend that it’s even remotely entertaining:

The customer enters the restaurant after braving the Arctic winds outside. As they stomp their snowy boots onto the floor and shake the snow off their hats with reckless abandon, the eagerly look around the restaurant to see who will be the lucky one to hear their joke. Hostess, busser or server? It matters not to them as long as someone gets to her their attempt at humor. Once they catch eyes with the poor unsuspecting soul, it happens. The customer says something like, “Man, it sure is cold outside.” They then turn their attention to the back part of the restaurant or the area that one would normally go to be seated outside. And then it happens.

“Can we sit on the patio?”

And here is my response to your joke:

 

Stop it. It’s not funny. Grow the fuck up. Try a new joke. We’re tired of you. The patio is fucking closed.

Trump Puts a Lemon in the Water. The Good. The Bad. The Ugly.

This post was written by attorney Drew N. Herrmann who wants to help us understand the proposed changes to our tips. This is is website if you’d like more information. And if you would like to leave a comments about this proposed tip change, the Department of Labor is looking for your opinion here. Thank you.  -BW

You may have heard that Trump’s Secretary of Labor has proposed a new regulation concerning the tip pool laws. Lots of commentary has been written concerning the new proposed regulation. With that comes the fake news; I have read several misleading headlines regarding the interpretation of the new regulation. Specifically, headlines such as “Trump is About to Make Tip-Pooling Legal Again.” Headlines such as this one seem to predispose with the idea that tip pooling is and was illegal – which could not be further from the truth. Since 1938, tip pooling has been legal. However, what is and still is illegal is the participation in a tip pool by back-of-the-house employees and managers. In fact, this will remain true, in part, even under Trump’s new regulation.

This article will be a two-part series.  In part one, I will cover the history of the tip laws, so you have a better understanding of the development of the law and how we arrived at this point. In part two, I will give my assessment of the new regulation and how the new regulation affects restaurant employees.

The FLSA – A 1938 Post Depression-Era Employee Protectionism Law

The Fair Labor Standards Act is a 1938 post depression-era law that was enacted to set a minimum standard of living by imposing a minimum wage, overtime requirements, and other employee protections. The FLSA also contains the laws on paying tipped employees – known as the tip credit. The “tip-credit” is the provision of the law that governs the relationship between employer and employee when it comes to employees who earn tips or gratuities. The tip-credit also allows an employer to pay “tipped employees” less than the federal minimum wage – or as little as $2.13 per hour. However, the FLSA strictly prohibits an employer from taking any of those tips for themselves and prohibits a tip pool that includes participation of any non-service staff  including managers, cooks, dishwashers, and bussers.

 

The 10th Circuit Ruling

We thought the law was settled until a class of restaurant waiters and waitresses working at the Vita Café in Oregon sued their employer – Woody Woo for operating an illegal tip pool. Woo required its waitstaff to share their tips with everyone in the restaurant, including back of the house employees (cook, dishwasher, etc.). It appeared an easy win for the waiters and waitresses because it was well-established that a server could not be required to share or pool tips with back-of-the-house employees. However, Woo contested the allegations stating that the tip laws only applied to employers who paid their employees a sub-minimum wage. Since the waiters and waitresses in Woo were paid minimum wage, Woo argued the tip laws did not apply, and Woo could do as it pleased with the tips earned by its waitstaff as long as it paid a direct hourly wage of minimum wage or higher (i.e. federal minimum wage is currently $7.25 per hour). The 10th Circuit agreed,  holding that an employer who paid a direct hourly wage of minimum wage or higher was not subject to the tip laws – meaning Woo and any other employers who paid at least minimum wage could take and do as it pleased with the tips earned by waitstaff.

The Development of the Tip Laws During the Obama Era

In response to the 10th Circuit’s ruling, the DOL under the Obama-administration issued a regulation stating that the FLSA’s tip laws apply even when an employee is paid a direct hourly wage that is greater than minimum wage. In other words, this Obama-era regulation required employers to allow their employees to keep their tips regardless of how much the employee earned.

The 9th Circuit Disagrees with 10th Circuit and Sides With Obama-era Regulation

Next, a group of casino dealers sued Wynn Las Vegas, LLC (Wynn Casino) for requiring these dealers to share their tips with box people at the craps tables, etc. (i.e. pit bosses). Similar to Woo, Wynn also contested the case saying that it could do as it pleased with its employees’ tips because it paid them at least minimum wage. Wynn cited the Woo case to support its position. However, the 9th Circuit disagreed with the 10th Circuit; the 9th Circuit, siding with the Obama-era regulation, held that the FLSA’s tip laws apply regardless of the hourly rate an employer pays its employees.

What’s the Law of the Land?

Therein ensued a battle to the U.S. Supreme Court, the 9th and 10th circuits disagreed. Who was right? Do the tip laws under the FLSA apply to employers who pay their employees a direct wage that is equal to or greater than the minimum wage? That question is pending before the U.S. Supreme Court.

However, Trump was elected and immediately withdrew the Obama-era regulation, leaving everyone to wonder; do the FLSA’s tip laws apply when an employer pays its employees more than minimum wage? Well, now Trump has issued his own proposed-regulation, stating the exact opposite of the Obama-era regulation: if an employer pays its employees an hourly wage of at least minimum wage then the employer can do whatever it wants with the tips earned by its employees.

Here is what that means. Under the text of the proposed regulation, if your employer pays you at least minimum wage, then he can do whatever he wants with your tips. Yes, your employer can require you to share your tips with the back-of-the-house and anyone else your employer sees fit. However, your employer could also choose not to share your tips, but pocket them. There have been several employee-advocate groups who have proposed that the law, at a minimum, include a provision prohibiting employers from taking the tips for themselves.

Just to be clear, if your employer does not pay you a direct hourly wage of at least minimum wage, but instead pays you a sub-minimum hourly wage (e.g. $2.13 per hour) the new regulation has no effect on you. You can still be required to pool your tips, but you cannot be required to share or pool those tips with managers, back-of-the-house employees, or other non-service staff.

Now that you know how we arrived here, in Part 2 I am going to tell you where I think we are headed — discuss the possible ramifications (positive and negative) once the new proposed-regulation is passed.

Man Gives Cheesecake Factory One Star Because of Gay People

It’s day three of the new year and my plan was to try to be more of thoughtful, caring soul in 2018. Then I looked at the name of my blog and went, “Fuck it.” Someone sent me a 1-star Yelp review by someone named Richard M. (I shall call him Dick for short) who did not enjoy his experience at The Cheesecake Factory. It wasn’t that he was disappointed with his Glamburger® of choice or that his fried macaroni and cheese balls were anything but a hot, gooey mess of salty perfection dripping from his chin. The thing that made Dick all hot and bothered was that he saw “to” men holding hands and kissing while they waited for a table. And the worst part of it all was that Dick’s two little boys had to witness this atrocity.

According to Dick, these two men were “tonging” each other without a care in the world and Dick thought this behavior was more suited to behind a bathroom stall or in a car. Well, guess what, Dick. It’s not illegal to be gay and the days of men and women having to hide their affection is gone. If your two little boys saw this, the only way they would think there is something wrong with it would be based on how you reacted to it, you big ol’ drama queen. If it had been a man and woman making out, I’m sure you would have been fine with it. And if it had been two women making out, it would probably remind you of your favorite porno. But two men? Clutch the pearls, girls. Dick can’t handle that and it’s all the fault of The Cheesecake Factory, so one star! I wonder what other things Dick doesn’t let his children see? People smoking cigarettes is bad so does he shield their virgin eyes every time someone lights up a Camel? I doubt it.

Dick plans to never return to this particular Cheesecake Factory and will go to the Hillcrest location instead. That will work out better for all involved, because we gays don’t go to the Hillcrest location. No, it’s true. As a gay, I know. It was in our monthly newsletter a few months ago:

Hey, girls! Heads up to all you queens who need to get your Golden Girls cheesecake fix: if you’re going to Cheesecake Factory, we only go to the one in the Fashion Valley mall because, duh. Fashion! Mall! Don’t go to the Hillcrest location. That’s where we let the straights go so they can live in their bubble of hetero, missionary-style sex and keep their kids away from things their stupid parents think they shouldn’t be exposed to. So if you need some Oreo® Dream Extreme Cheesecake, make sure you go to the Fashion Valley mall location. And make sure to make out while you wait for your table. If someone there doesn’t like it, it’s their own fault for going to the wrong Cheesecake Factory. Those people are dicks.

It’s 2018. I have high hopes for this year, but so far it’s the same old shit as I saw in 2017. Fuck you, Richard M. Get over yourself and face the facts that men kiss other men. Why don’t you worry about something that actually matters? By the way, you do realize that marijuana is legal in your state now, right? Make sure you don’t let your kids hear about that. Marijuana is the gateway drug and the next thing you know your little boys are going to get the munchies and be stuffing their faces with Buffalo Blasts® and Tex Mex Eggrolls. Meanwhile, we gays are going to be stuffing our faces with other things because just like weed, it’s legal.

Read Richard M.‘s review of The Cheesecake Factory on Yelp

The Last A**hole Child of the Year

It’s the last day of 2017 and we have discovered our final asshole child of the year: Annabelle. It appears that Annabelle likes two things. She likes hockey and she likes to use crayons to destroy perfectly good linens at restaurants. Annabelle, while I appreciate your artistic endeavors and I can see that you have a bright future ahead of you as either a hockey goalie or an amateur sign painter, who the hell told you it was okay to do this? I know it wasn’t the server, because that server specifically told me that when she asked you to stop doing it, your mother jumped in exclaiming that you’re “just a child.” Oh, wait. I just answered my own question. Your mother allowed this. Annabelle, put your mom on the phone, I wanna talk to her.

Hello, Annabelle’s Mom? Bitchy Waiter here. That is some straight up bad parenting right there. You are teaching your daughter that the belongings of other people don’t matter and that she can do whatever she wants. What a great way to raise a selfish, unaware human being that will thing the world revolves around her. Are you trying to make sure your daughter is just like you when she grows up because that’s what it seems like. I’m sure every parent dreams of having a little Mini Me, but maybe you should try to weed out some bad behaviors and create a better person that yourself. I once heard that all any parent wants is for their child to be happier and more successful than they were, but you really need to factor in some of the character flaws that you might want to do away with. If you teach Annabelle that it’s okay to draw all over a table cloth in a restaurant, what do you think Annabelle is going to teach her daughter? Yeah, the same thing. So in twenty-five years, I’ll have to write this blog post all over again when your granddaughter does this and a disgruntled server sends me a picture of it. (Although by the year 2052, they will probably send me something much more complex than an image. It might be a hologram or a visual memory that is shared directly to my brain using the Apple iSharing dock that we all have installed in our brains by then.) Annabelle’s Mom, the next time you see your daughter destroying property, your response should be something like this:

Annabelle, honey, that’s not nice. That tablecloth doesn’t belong to you. Give me those crayons right now and go find the waitress so you can apologize for your abhorrent behavior. And also apologize to them on my behalf, because I failed as a parent. And I want to apologize to you for letting this happen. I should have been paying attention to all of those art projects you have bringing home all those years and told you right then and there to give up art because you suck at it. Your spacing is all wrong and that random blue mark is throwing off the color palette. We need to find you a new hobby that your more suited for, like reading or sitting all quiet in a dark corner somewhere. And while I’m being so honest with you, sweetie, the only thing you’re worse at than drawing is hockey. Watching you play today was painful.

Good bye, 2017.

The Grinch Who Wanted To Eat At Applebee’s on Christmas

I have a storied past with Applebee’s and they are very often the brunt of jokes. However, when it comes to this blog, nine times out of ten I am going to defend the restaurant and the servers so today I am on Team Applebee’s

On a bright and sunny Christmas Day in Sikeston, Mo, Scott B. woke up and wanted nothing more than to celebrate the birth of Jess Christ his Savior by taking his family to Applebee’s and dining on Riblet Platter with fries and coleslaw. Unfortunately, there were others in Sikeston who woke up feeling the exact same way. So after Scott opened up his Christmas presents of new tire flaps and the latest model of the Fleshlight, he headed out to Applebee’s only to find it jam-packed with like-minded hungry customers. The hostess told him they were not seating at that moment because the kitchen was backed up, but to Scott’s dismay, he noticed that the restaurant was only half full.

What is one to do? Scott had two options: to either wait patiently and understand that the restaurant was possibly understaffed due to it being Christmas fucking day OR log on to Facebook and start complaining on the Applebee’s page. Guess which one Scott chose.

Oh, Scott. Dear, sweet, clueless, entitled, arrogant, can’t wait to use your new Fleshlight, Scott. Yes, the restaurant was busy and you had to wait. According to your post, so did 15 other people. And the reason you saw tables empty was because the restaurant realized that they could not accept more customers at that very moment and thought it best to be upfront and honest with you about the extended wait time than to seat you and give the false illusion that service was going to come quickly. We don’t know why they were short staffed, but they clearly were. Perhaps it was difficult to find enough servers to since, I dunno, it was fucking Christmas Day. Or maybe they did have it adequate staffed but a few people decide to call in sick since, I dunno, it was fucking Christmas Day.

“I’m sorry it’s a holiday, but nothing is open,” you say in your Facebook rant. Yes, nothing else is open because it’s fucking Christmas Day and some places make the humane decision to close that day so employees can spend that day with their families and the people they care about rather than dealing with whiney, sniveling crybabies like you.

“It’s not worth it,” you say. Funny, that is exactly what every single person who was working at Applebee’s that day said too.

It seems that you waited about an hour before deciding it wasn’t worth it which tells me that for 59 minutes, you did in fact think it was going to be worth it as the mantra “riblets and Fleshlight, riblets and Fleshlight…” ran through your head the whole time. But you finally left, probably vowing to never go back to the Applebee’s in Sikeston, MO again. It’s alright if you never go back. In fact if everyone who had to wait for service at Applebee’s on that day vowed to never go back on Christmas, maybe next year the restaurant could stay closed and let their employees stay home one day a year.

“Applebees in Sikeston, MO sucks!!!!!” you say. Well, I say the same thing about you.

Merry Christmas. Enjoy your Fleshlight.

p.s. Someone sent me a $50 gift card to Applebee’s so expect another Live Facebook video from there soon.

The Worst To-Go Order of 2017

With 2017 about to inhale its last breath and sputter into a distant memory, it’s difficult to think of the one thing that sucked the most out of this year. You can’t swing a dead cat without hitting at least one shit show from 2017. Mary Tyler Moore and David Cassidy both died this year. It also finally became public knowledge that pretty much every woman in the country has been sexually harassed by some asshole with a penis. Donald Trump’s Twitter account is a shit show all its own. I mean, how can just one thing be the most awful event of a whole year? And then someone sent me this picture:

Good God, 2017, how much more can we endure? This call-in order makes my skin crawl. I can just imagine these 15 people who probably all work in an office together, sharing cubicles and a copy machine. Nine of them are like, “Cool, I’ll take a salad with Ranch.” And the other seven are all, “Well, I want one but…”

How can 47% of the people who have decided to order lunch be this picky? C’mon! Think of the poor “to-go person” who has to put this order together and spend the next thirty minutes picking out croutons, cheddar shreds and bacon bits? That person saw this order and seriously considered walking out right then because we all know that one of those salads is going to be wrong.

“Carol, I think you have my gluten free salad because I have a crouton in mine.”

“No, Helen Tom, I think I have Roberta’s salad because mine doesn’t have any onions and I didn’t ask them to leave the onions out of mine. Roberta do you have the right salad?”

“I’m not sure, Carol, because this salad doesn’t have any onions in it either, but it does have croutons. I can’t have croutons, I’ll be in the bathroom the rest of the day. Which salad do you have, Sheila Pat?”

“I don’t know. I wanted a vegetarian salad, but this one has bacon in it!”

And so on and so on…

Meanwhile nine men human beings of varying sexual identities are eating their salads and wondering how their co-workers manage to get through life each day while one of those men people is trying to decide how to tell the two women non-gender specific beings who call themselves “vegan” and “gluten and dairy free” that Ranch dressing doesn’t fall under either of those fucking categories.

Go home 2017, you’re drunk.

This post has been edited to make it more inclusive and not so sexist as so many people have told me it was. -BW