Tipped Employees Are Protected by the Minimum Wage and Overtime Laws!
If you are a tipped employee, and your employer pays you less than the federal or Florida minimum wage per hour, or has been illegally treating you as an independent contractor, please read this article.
Many employers incorrectly think they can automatically pay tipped employees below the federal or Florida minimum wage. Our law office handles many cases involving the restaurant industry where service employees are paid less than the minimum wage. Even customarily tipped employees—waiters, waitresses, bartenders, busboys, and food runners—are entitled to legal protection.
The federal Fair Labor Standards Act, the Florida Constitution, Article X, §24, and the Florida Minimum Wage Act, (FMWA), Fla. Stat. 448.110, provide legal protections for tipped employees. The Florida Constitution provides that tipped employees may be paid an hourly rate of only of $3.02 less than the current Florida minimum wage. Under this law, a Florida employer receives a “tip credit” for the $3.02 difference between the employee’s actual hourly wage and the minimum wage. A tipped employee must receive a “direct wage”of $3.02 less than the current minimum wage, and make up the difference in tips. But, before an employer can pay you below the federal or Florida minimum wage, the employer must first meet certain legal conditions. If the employer does not first satisfy these conditions, the “tip credit” is invalid and you may be entitled to up to double the amount your employer deducted as a tip credit from your wages for each hour worked. You may be entitled to such damages for up to three years of hours worked under federal law and up to five years under Florida law.
One way the tip credit may be invalid is where employers do not properly inform their employees about taking a “tip credit” before they start deducting the tip credit from all work hours. To properly inform their employees, an employer must adequately explain the “tip credit” concept; if your employer did not explain the tip “credit,” you may be entitled to the amount your employer deducted as a tip credit for each hour improperly paid. Click the link to complete the on-line questionnaire, and an attorney will promptly contact you to discuss whether you were unlawfully denied your wages.
You also may be entitled to recoup the tip credit your employer deducted from your wages if your employer permitted an improper “tip pool” for their tipped employees or require tipped employees to “tip out” employees who do not regularly and customarily receive tips.
The TOP TEN ways employers violate the laws protecting tipped employees are:
- The restaurant ignores the minimum wage pay requirements, and forces tipped employees to work only for tips from customers.
- The employer requires tipped employees to share their tips with ineligible back-of-the-house employees, such as cooks, dishwashers, expeditors (expos), and janitors.
- The employer unlawfully requires tipped employees to share their tips with the restaurant or its managers.
- The employer pays the reduced server wage, and not the full minimum wage, for excess side work that does not generate tips. (Generally, if you are spending more than 20% of your shift on side work, the employer has to pay you the full minimum wage for that non-tipped time.)
- The employer fails to make up the difference between the reduced server wage and the full minimum wage when the tipped employee does not earn at least the full minimum wage on a slow shift.
- The employer improperly deducts money from the server’s minimum wages for business losses or expenses, such as walkouts, order mistakes, missing inventory, broken glasses/plates, or cash register shortages.
- The employer miscalculates the overtime pay rate by using the lower reduced minimum wage, rather than the full minimum wage, thereby paying a tipped employee an overtime rate that is too low.
- The employer fails to notify its tipped employees that it intends to take a tip credit and pay a reduced minimum wage.
- The employer fails to pay waiters at least the minimum wage for mandatory training time.
- The restaurant leads its customers to believe they are paying a gratuity to the server, but then the restaurant treats the gratuity like a service charge and misappropriates it.
The exotic dancing industry is yet another area often full of wage violations. Gentlemen’s clubs, where exotic dancers perform, often violate the wage laws by illegally treating exotic dancers as independent contractors and then improperly pay no wages to these workers. Indeed, may strip club owners actually require the exotic dancers to pay a fee to the club, a fee to the managers, a fee to the DJ, or stage fees in exchange for the opportunity to perform for the club’s customers. Some strip clubs even have their dancers pay the club money if the dancer is late or sick. In numerous court cases, exotic dancers have been found to be employees entitled to protection under the wage laws. If an exotic dancer is an employee of the club, the club would be required to pay its dancers at least the minimum wage for each hour worked, and time and one-half the minimum wage for overtime hours (i.e. hours worked over forty in a workweek). Such a wage payment requirement would be in addition to the tips received from customers. Nevertheless, many strip club owners still misclassify their dancers as independent contractor for the purpose of trying to avoid the wage payment requirements of laws such as the federal Fair Labor Standards Act. If you are an exotic dancer or entertainer and have questions about the pay practices of your employer, call an wage attorney at Bober & Bober, P.A. (800-995-WAGE) for a free, confidential consultation.
|Date Work Performed||Florida Minimum Wage|
|1/1/2009 to 7/23/2009||$7.21|
|7/24/2009 to 5/31/ 2011||$7.25|
|6/1/2011 to 12/31/2011||$7.31|
|2015 & 2016||$8.05|
|Date Work Performed||Florida Minimum Wage||Overtime Wage Rate|
|(Tipped Employees)||(Tipped Employees)|
|7/24/2009 to 5/31/ 2011||$4.23||$7.86|
|6/1/2011 to 12/31/2011||$4.29||$7.95|
|2015 & 2016||$5.03||$9.06|