If you receive a portion of your pay through tips, you may be a tipped employee under the Fair Labor Standards Act (FLSA). When a person works as a tipped employee, it is critical to understand worker rights under the FLSA, including rights to a minimum wage and rights to overtime pay. The FLSA also contains other protections for workers, and workers who are not paid fairly according to the FLSA may be eligible to file a wage and hour claim. Our Columbus wage and hour attorneys can provide you with more information about employee rights and tipping violations.
What is a Tipped Employee?
Who is a tipped employee? According to the U.S. Department of Labor (DOL), “tipped employees are those who customarily and regularly receive more than $30 per month in tips.” The DOL explains that “tips are the property of the employee,” and “the employer is prohibited from using an employee’s tips for any reason other than as a credit against its minimum wage obligation to the employee . . . or in furtherance of a valid tip pool.” Moreover, the DOL clarifies that “only tips actually received by the employee may be counted in determining whether the employee is a tipped employee and in applying the tip credit.”
What is a tip credit? In short, tipped employees must still be paid a minimum wage. Employers can credit an employee’s tips toward the employer’s obligation to pay the minimum wage, or the difference between the required wage of $2.13 for tipped employees and the minimum cash wage (which is $7.25 under federal law).
What is a tip pool? Tip pooling refers to a practice in which a business pools all the tips for the night and redistributes the tips equally among the tipped employees or based on a set percentage to tipped employees, rather than allowing employees to keep their individual tips. Tip pooling is lawful under federal law.
Common Tipping Violations in Columbus
There are many different types of tipping violations that can result in an employee filing a wage and hour claim. Some of the most common tipping violations include the following, for example:
- Claiming a tip credit without informing the tipped employee of the tip credit provision;
- Claiming more than an amount that is lawful as a tip credit (more than $5.13 as a credit);
- Claiming a tip credit that exceeds the amount of tips the employee received;
- Retaining an employee’s tips for reasons other than tip pooling;
- Allowing its managers, owners, kitchen staff or other non-tipped employees to share tips from the tip pool;
- Failing to pay the minimum wage based on the difference between the $2.13 per hour required for tipped employees and the hourly minimum wage (if the tipped employee is short, the employer must make up the difference);
- Failing to pay appropriate overtime, which is calculated based on the minimum wage as opposed to the employee’s pre-tip wage of $2.13 per hour.
Other tipping violations in Ohio may occur, and any tipped employee who has concerns should seek advice from a Columbus wage and hour attorney.
Contact a Wage and Hour Lawyer in Columbus
If you were not paid properly as a tipped employee, or if an employer violated the FLSA’s tip provisions and requirements, you should get in touch with a Columbus wage and hour lawyer to find out about filing a claim. Contact Brian G. Miller CO, L.P.A. for more information.