On a speakerphone were the lovely voices of two servers, “Mindy” and “Jennifer,” who explained that they are both law students and work part-time at the restaurant. “Even though the hourly pay is excellent and the tips are great, we are on the verge of quitting this place, seasick because of management’s unbelievably cheapness that is upsetting customers who are taking it out on us as well a safety issue caused by one employee,” Mindy said.
While we were talking, they emailed a video showing the restaurant’s large, illuminated menu, customers lining up to place their order, paying the cashier and servers bringing food to tables.
The menu showed a photo of each item, one of which was “Our best seller, fish and chips” with three nice-sized pieces of fish on a bed of fries. In large letters was: “Please select two sides to accompany your order.”
‘But it says two sides!’
“Without revealing this anywhere, now, when customers order fish and chips and the two sides, they are told, ‘You only get one because the fries are considered as a side but you can pay extra for a second.’
“This is really upsetting our customers, many of whom yell at us, saying, ‘This is crazy! What do you mean the fries are a side? Fish and chips is a meal with two parts, fish and fries. The menu says two sides! You are cheating us when we are told this nonsense! It is bait and switch!’
“Several have demanded a refund, walked out and written poor reviews. We think management is completely wrong and violating our state’s Truth in Menu laws. We told them that, but they ignored us. Can you help as we otherwise like working here, but this issue is creating great stress,” Jennifer explained.
Definition of fish and chips: what chefs say
Both Wikipedia and most dictionaries define fish and chips “as a popular hot dish consisting of fried fish in a crispy batter, served with fried potatoes, known as chips or French fries. While origins of the combination go back several centuries, it is generally credited as an English creation from 1860.”
I ran management’s shooting itself in the foot by chefs across the country, specialty seafood restaurant owners and lawyers who teach hospitality law. All agreed that it is just plain wrong to consider the fries as a separate, side order.
One chef at a neighborhood Italian restaurant in Chicago put it this way: “My menu also includes two sides with every order, spaghetti being one possible choice. I would be run out of town if a guest were to order spaghetti and meatballs and told, ‘The spaghetti is a side, and so you only get one more.’
“The management of this chain of seafood restaurants are most likely violating Truth in Menu laws by what they are doing. Saving a few cents on a side and upsetting customers and staff is false economy as well as bait and switch.”
What Looney’s PR department said
I emailed Looney’s PR department: “Would you please tell me how you can justify what amounts to menu bait and switch by this misleading conduct?”
In less than 24 hours, they replied, admitting that it indeed is misleading and that the menu has been changed to replace fish and chips with “Battered Fish and Chips.” Nothing was said about the two sides issue.
Really? Battered Fish and Chips? When I ran this stroke of brilliance by a hospitality lawyer, his comment was, “This makes it even worse by leaving off the word fried. Someone there doesn’t know what they are doing, saving pennies and losing dollars.”
The safety issue: His name is Tiny
Recall that the law students raised a safety issue. His nickname is “Tiny,” and he appeared in the video.
“We are not trying to fat shame or put someone down because of their obesity, but Tiny is so obese that he can’t walk normally. He waddles and has bumped into servers who were carrying food trays — knocking them down, spilling customer orders all over the floor!”
“More than that, his fingers are so fat that he punches in the wrong items when customers are placing orders. But the worst part is that he has come right out and said that he hopes to have a work injury and get worker’s compensation disability money!”
“We mentioned this to the manager who just shrugged it off, telling us to keep our distance from him. But we feel strongly that he is a real danger, in addition to trying to commit workers compensation fraud,” Mindy added.
“Mr. Beaver, what is your legal analysis of our situation? What can we do? Could our manager fire Tiny based on his behavior and statements?” Jennifer asked.
An Employment Lawyer’s Recommendation
To Southern California-based employment and criminal defense attorney, Gabriel A. Godinez, this is clearly a frustrating situation. “Sadly, these servers really can’t do much beyond filing an anonymous complaint of dangerous working conditions with their local OSHA — Occupational Safety and Health Administration office.
“Possibly their Labor Commissioner’s Office might look into the matter as well. As obesity is not a protected class in their state, the manager could let Tiny go on the basis that he is unable to safely perform his job functions.”
My recommendation? It is time for these two crew members to jump ship!
Dennis Beaver practices law in Bakersfield and welcomes comments and questions from readers, which may be faxed to 661-323-7993, or emailed to [email protected] Also, visit dennisbeaver.com.
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