Tipped Employees

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, 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. For example, restaurant owners cannot “pocket” a portion of their employees' hard earned tips. An employer also cannot require tipped employees to tip out managerial or other employees who do not customarily receive tips (i.e. cooks, managers, owners, office workers, or dishwashers). If you are being required or pressured to share your tips with workers who do not regularly and customarily receive tips or who have little or no customer interaction, the "tip credit" may be invalid, and you may be entitled to damages and attorneys' fees.  Click our questionnaire, give us your contact information, and our attorneys will contact you promptly for a free, personalized case evaluation. If we are able to handle your case, we do not charge any fees or costs unless we recover money for you from your employer.

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.

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The federal minimum wage is as follows:

The Florida minimum wage is as follows:

Direct Wage for Florida Tipped Employees