Columbus Tipped Employee Wage Violation Attorney
At Brian G. Miller Co., L.PA., our Columbus tipped employee wage violation attorney represent tipped employees who have been underpaid their rightful wages by their employers, either individually or as a group.
The Fair Labor Standards Act (FLSA) requires employees to be paid at least the applicable minimum wage. Currently, the federal minimum wage is $7.25 per hour, although Ohio has enacted a higher minimum wage for most employees. In Ohio, employers who gross $323,000 or more must pay their employees a minimum wage of at least $8.80 an hour. Under the FLSA, however, special rules apply to tipped employees. Employees who work for tips can be paid less than the minimum wage, provided certain requirements are met. These requirements, unfortunately, are often violated by employers either negligently or intentionally.
What is a “tipped” employee?
For the purposes of the FLSA, a tipped worker is one who customarily and regularly receives more than $30 a month in tips. Employers are allowed to take a “tip credit” and pay these workers a lower minimum wage of $4.40 per hour (or one-half the current state minimum wage). However, it is the responsibility of the employer to demonstrate that the workers are receiving at least the applicable minimum wage when considering their wages and tips together. Employers violate the law when the tip credit they take is too high, leaving the worker earning less than the minimum wage. Also, the tip credit amount must reflect the amount the employee actually receives in tips.
Non-tipped duties and dual jobs
What about time the worker spends performing non-tipped duties, such as rolling silverware, sweeping up around the tables, restocking the bar, etc.? Previously, workers could be paid the lower “tip credit” wage for these duties so long as these chores did not amount to more than 20% of the employee’s duties. This rule has recently changed. Now, all of the workers’ wages can be subject to the tip credit, so long as the non-tipped duties are “contemporaneous” with the tipped duties.
This change in the rules does not apply to dual jobs. When an employee actually works two jobs for the employer and only one is tipped (waiter and cook, bartender and dishwasher), then the employee must receive at least the full minimum wage for all hours worked performing the non-tipped job.
Running illegal tip pools
In addition to tip credit violations, mishandling tip pools is another way employers violate the wage laws for tipped employees. In a tip pool, tipped workers turn their tips over to their employer, who then redistributes the tips to all the tipped employees according to an established distribution scheme. Employers must inform employees about any tip pool and how it operates. Most importantly, employers cannot take or keep any portion of employee tips.
Prior to 2020, tip pools could not include non-tipped employees. However, a recent change in the law allows employers to set up a “nontraditional” tip pool that includes employees who do not customarily and regularly receive tips, such as dishwashers, cooks and other “back-of-the-house” restaurant workers. This rule is new, and employers might not fully understand how to do this properly and incur wage violations in the process. For instance, non-tipped employees must still be paid the full minimum wage even if participating in the tip pool; the employer cannot take a tip credit for these workers just because they are brought into the pool.
Most common wage and hour violations of tipped employees
Employers who violate their tipped employees’ rights are usually guilty of one or more of the following wage and hour violations:
- Paying workers only in tips and no cash wages
- Keeping a portion of workers’ tips as part of a tip pool
- Taking too much of a tip credit
- Calculating a worker’s overtime wages based on their lowered minimum wage with the tip credit taken out. Overtime must instead be calculated on the full minimum wage applicable to the employer, either the federal minimum wage of $7.25 per hour or the Ohio minimum wage of $8.80 per hour.
- Making deductions for things like broken dishes, customers who skip out on the check, or shortages in the cash register receipts. These deductions can only lawfully be taken from wages, not tips, and if they bring the worker’s wages down below the minimum wage, they are illegal.
- Failing to notify employees about tip credits and tip pools and how they work
Call Our Tipped Employee Wage Violation Attorneys in Columbus, Ohio, to Discuss Your Claims
Our tipped employee law firm is experienced representing servers, bartenders, parking attendants and other tipped employees who are denied their fair wages. There are too many ways an employer can violate a tipped worker’s rights, and whether the employer simply makes mistakes or is outright stealing wages, our Columbus wage and hour lawyers make sure our clients are fully and fairly paid as required under the law.
If you believe that your regular wages or overtime pay as a tipped employee is being miscalculated, kept from you or otherwise violated, call Brian G. Miller Co., L.P.A. at 614-221-4035 to speak with an experienced Columbus tipped employee wage violation lawyer to discuss your rights and any potential claims you may have.