The law permits an employer to pay an employee less per hour than the minimum wage rate IF the employee is one who regularly receives tips as a traditional part of the job. (The current federal minimum wage rate is $7.25/hr. and the current Florida minimum wage rate is $7.79/hr.) However, an employer of a tipped employee is NOT allowed to do certain things which include:
1. An employer or manager cannot require the tipped employee to work “off the clock”. Many servers are often required to report to work and set up tables and not permitted to clock in until customers begin to arrive. That unpaid work may mean you have a claim to unpaid wages.
2. An employer or manager cannot require an employee who is paid less than the minimum wage to incur the expense of having to launder their own uniform. If you experienced this situation, you may be entitled to compensation.
3. An employer or manager cannot deduct from a tipped employee’s compensation for any breakages caused by the server, or deduct from the server for any customer who fails to pay their bill. If you experienced this situation, you may be entitled to compensation.
4. An employer or manager is not allowed to share tips with non-tipped employees for, in, or to the extent there is a tip pool. Thus, for example, management is not allowed to take any money out of a tip pool to pay any non-server or bus-boy. Thus, for example, if the employer shares tips with cooks, hostesses, or managers, such sharing is typically illegal. If you experienced this situation, you may have been underpaid and be entitled to compensation.
5. An employer or manager is not allowed to require tipped employees to spend more than 20% of their time in a week performing work that does not generate tips (for example, such as cleaning, setting up tables, etc.), and still claim the tip credit for the time spent performing such work. If you experienced this situation, you may be entitled to compensation.
If you experienced any of these situations, you may have been underpaid and be entitled to compensation. We invite you to contact us for a free consultation at www.shavitzlaw.com or email us at [email protected].
For those employers who pay their tipped employees by the hour, mistakes in pay are common, whether deliberate or unintentional. We invite you to check with us to confirm the proper pay rates and calculations for your situation. Tipped employees should be paid time-and-a-half wages for each hour worked over, or in excess of, forty hours in a week. Many employers miscalculate the proper overtime rate of pay for tipped employees because of the tip credit, and as a result of such mistakes, you may be owed additional overtime pay.