Written by attorney Randy T. Enochs

Tipped Employees and the Minimum Wage

Earlier this evening I came across a 'picture' discussing servers and the minimum wage with a goal of making patrons feel guilty if they are bad tippers--if they tip at all--but the picture was rather misleading. A very commonly-misunderstood area of wage & hour law is tipped employees (i.e., those who customarily and regularly receive more than $30 per month in tips) and how they are paid since they are not paid like regular, hourly employees. The Department of Labor (DOL) has an excellent break down of tipped employees and the minimum wage available here. It is fairly well-known that tipped employees--e.g., servers and bartenders, are only paid $2.13 per hour with the rest of their income typically made up of tips from customers. A huge misconception is that employers only have to pay $2.13 per hour and if the tipped employee receives no tips, that's all they earn. FALSE! The Fair Labor Standards Act (FLSA) requires tipped employees to be paid at least the minimum wage ($7.25), made up by the employer. That is, if a waiter/waitress or bartender receive no tips in a given shift, it is the duty of the employer, under the law, to make up the difference so that employee receives at least the minimum wage. Other helpful information regarding tips to know include:

Retention of Tips: A tip is the sole property of the tipped employee regardless of whether the employer takes a tip credit. The FLSA prohibits any arrangement between the employer and the tipped employee whereby any part of the tip received becomes the property of the employer. For example, even where a tipped employee receives at least $7.25 per hour in wages directly from the employer, the employee may not be required to turn over his or her tips to the employer. Tip Pooling: As noted above, the requirement that an employee must retain all tips does not preclude a valid tip pooling or sharing arrangement among employees who customarily and regularly receive tips. The FLSA does not impose a maximum contribution amount or percentage on valid mandatory tip pools. The employer, however, must notify tipped employees of any required tip pool contribution amount, may only take a tip credit for the amount of tips each tipped employee ultimately receives, and may not retain any of the employees' tips for any other purpose. Credit Cards: Where tips are charged on a credit card and the employer must pay the credit card company a percentage on each sale, the employer may pay the employee the tip, less that percentage. For example, where a credit card company charges an employer 3 percent on all sales charged to its credit service, the employer may pay the tipped employee 97 percent of the tips without violating the FLSA. However, this charge on the tip may not reduce the employee's wage below the required minimum wage. The amount due the employee must be paid no later than the regular pay day and may not be held while the employer is awaiting reimbursement from the credit card company. The DOL's website also has a list of "typical problems" associated with tipped employees that are the basis of a lot of lawsuits: - Where an employee does not receive sufficient tips to make up the difference between the direct (or cash) wage payment (which must be at least $2.13 per hour) and the minimum wage, the employer must make up the difference. - Where an employee receives tips only and is paid no cash wage, the full minimum wage is owed. - Where deductions for walk-outs, breakage, or cash register shortages reduce the employee’s wages below the minimum wage, such deductions are illegal. Where a tipped employee is paid $2.13 per hour in direct (or cash) wages and the employer claims the maximum tip credit of $5.12 per hour, no such deductions can be made without reducing the employee below the minimum wage (even where the employee receives more than $5.12 per hour in tips). - Where a tipped employee is required to contribute to a tip pool that includes employees who do not customarily and regularly receive tips, the employee is owed all tips he or she contributed to the pool and the full $7.25 minimum wage.

Overtime Problems: - Where the employer takes the tip credit, overtime is calculated on the full minimum wage, not the lower direct (or cash) wage payment. The employer may not take a larger tip credit for an overtime hour than for a straight time hour (i.e., $4.00 tip credit per hour for the nonovertime hours and $5.12 tip credit per hour for overtime hours). - Where overtime is not paid based on the regular rate including all service charges, commissions, bonuses, and other remuneration.

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