Recover Unpaid Wages for Restaurant Workers and Tipped Employees in Florida
Understanding Tipped Employee Wage Notices in Florida
The employer must provide the following information to a tipped employee before the employer may use the tip credit:
- the amount of cash wage the employer is paying a tipped employee, which must be at least $2.13 per hour under federal law ($5.03 under Florida law);
- the additional amount claimed by the employer as a “tip credit,” which cannot exceed $5.12 under federal law (the difference between the minimum required cash wage of $2.13 and the current federal minimum wage of $7.25) (In Florida, the employer cannot claim more than $3.02 as “tip credit). Thus, if the employee worked over 40 hours in a week, the employee is still entitled to overtime, but the employer is still limited as to the amount of tip credit that they can take.
- the tip credit claimed by the employer cannot exceed the amount of tips actually received by the tipped employee;
- all tips received by the tipped employee are to be retained by the employee except for a valid tip pooling arrangement limited to employees who customarily and regularly receive tips; and
- that the tip credit will not apply to any tipped employee unless the employee has been informed of these tip credit provisions.
The employer may provide oral or written notice to its tipped employees informing them of items 1 – 5 above. An employer who fails to provide the required information cannot use the tip credit provisions and, therefore, must pay the tipped employee at least $7.25 per hour in wages (under federal law) and allow the tipped employee to keep all tips received.
Legal Boundaries of Tip Pooling in Florida's Hospitality Industry
Employers can require tipped workers to participate in a tip pool. However, the tip pool can only consist of employees who customarily and regularly receive tips such as waiters, waitresses, bussers, bartenders, and barbacks. The tip pool cannot include those who do not customarily and regularly receive tips such as dishwashers, cooks, chefs, janitors, bouncers, and managers. If non-tipped employees are included in the tip pool, this destroys the ability of the employer to take the tip credit and the employee would be entitled to the full minimum wage, and not just the tip credit.
Tip Credit Compliance for Dual Job Employees in Florida
When an employee is employed by one employer in both a tipped and a non-tipped occupation, such as an employee employed both as a cook and a waiter, the tip credit is available only for the hours spent by the employee in the tipped occupation. The FLSA permits an employer to take the tip credit for some time that the tipped employee spends in duties related to the tipped occupation, even though such duties are not by themselves directed toward producing tips. For example, a waitperson who spends some time cleaning and setting tables, making coffee, and occasionally washing dishes or glasses is considered to be engaged in a tipped occupation even though these duties are not tip-producing. However, when a tipped employee spends a substantial amount of time (in excess of 20 percent in the workweek) performing related duties, no tip credit may be taken for the time spent in such duties.
Record-Keeping Requirements for Employers Using Tip Credits in Florida
Employers electing to use the tip credit provision must be able to show that tipped employees receive at least the minimum wage when cash wages and the tip credit amount are combined. If an employee’s tips combined with the employer’s direct (or cash) wages of at least $2.13 per hour/$5.54 in Florida do not equal the minimum hourly wage, the employer must make up the difference.
Overtime Pay Obligations for Tipped Employees in Florida
Employers electing to use the tip credit must still pay overtime to employees that work over 40 hours in a workweek. This overtime wage payable by the employer must be at least 1.5 times the minimum wage minus the allowable tip credit.
Illegal Payroll Deductions and Tip Credit Violations in Florida
Employers often deduct monies from the payroll of tipped employees for broken dishes or when customers skip out on their bills. Forcing the tipped employee to pay for these items often takes their pay below allowable tip credit and is a violation.
Florida's Wage Laws: Ensuring Tipped Employees Receive Proper Wages
As noted above, The Fair Labor Standards Act requires the employer to pay the employee at least the minimum wage for the applicable tip credit. Often, employers will allow an employee to work for only tips, and the employee is not paid any wages from the employer. This is a violation of the Fair Labor Standards Act and would entitle the tipped employee to the full minimum wage plus an equal amount of liquidated damages.
Contact J.J. Talbott Law for Your Wage Claim in Florida
If you believe you may have been wrongly paid, you may be entitled to unpaid wages plus liquidated damages. Call the attorneys at the Law Office of J.J. Talbott for a free confidential consultation today at (850) 695-8331, or contact us via email today.
Common Tipped Employee Wage Violations
1) Failure to Provide Notice to the Tipped Employee
The employer must provide the following information to a tipped employee before the employer may use the tip credit:
- the amount of cash wage the employer is paying a tipped employee, which must be at least $2.13 per hour under federal law ($5.03 under Florida law);
- the additional amount claimed by the employer as a “tip credit,” which cannot exceed $5.12 under federal law (the difference between the minimum required cash wage of $2.13 and the current federal minimum wage of $7.25) (In Florida, the employer cannot claim more than $3.02 as “tip credit). Thus, if the employee worked over 40 hours in a week, the employee is still entitled to overtime, but the employer is still limited as to the amount of tip credit that they can take.
- the tip credit claimed by the employer cannot exceed the amount of tips actually received by the tipped employee;
- all tips received by the tipped employee are to be retained by the employee except for a valid tip pooling arrangement limited to employees who customarily and regularly receive tips; and
- that the tip credit will not apply to any tipped employee unless the employee has been informed of these tip credit provisions.
The employer may provide oral or written notice to its tipped employees informing them of items 1 – 5 above. An employer who fails to provide the required information cannot use the tip credit provisions and, therefore, must pay the tipped employee at least $7.25 per hour in wages (under federal law) and allow the tipped employee to keep all tips received.
2) Forced Participation in a Tip Pool that Includes Non-Tipped Workers Such as Dishwashers or Managers
Employers can require tipped workers to participate in a tip pool. However, the tip pool can only consist of employees who customarily and regularly receive tips such as waiters, waitresses, bussers, bartenders, and barbacks. The tip pool cannot include those who do not customarily and regularly receive tips such as dishwashers, cooks, chefs, janitors, bouncers, and managers. If non-tipped employees are included in the tip pool, this destroys the ability of the employer to take the tip credit and the employee would be entitled to the full minimum wage, and not just the tip credit.
3) Claiming the “Tip Credit” for All Hours Worked When an Employee Sometimes Works as a Tipped Employee and Sometimes Does Not
When an employee is employed by one employer in both a tipped and a non-tipped occupation, such as an employee employed both as a cook and a waiter, the tip credit is available only for the hours spent by the employee in the tipped occupation. The FLSA permits an employer to take the tip credit for some time that the tipped employee spends in duties related to the tipped occupation, even though such duties are not by themselves directed toward producing tips. For example, a waitperson who spends some time cleaning and setting tables, making coffee, and occasionally washing dishes or glasses is considered to be engaged in a tipped occupation even though these duties are not tip-producing. However, when a tipped employee spends a substantial amount of time (in excess of 20 percent in the workweek) performing related duties, no tip credit may be taken for the time spent in such duties.
4) Employer failing to keep records of tips received
Employers electing to use the tip credit provision must be able to show that tipped employees receive at least the minimum wage when cash wages and the tip credit amount are combined. If an employee’s tips combined with the employer’s direct (or cash) wages of at least $2.13 per hour/$5.54 in Florida do not equal the minimum hourly wage, the employer must make up the difference.
5) Employer failing to pay an employee for Overtime
Employers electing to use the tip credit must still pay overtime to employees that work over 40 hours in a workweek. This overtime wage payable by the employer must be at least 1.5 times the minimum wage minus the allowable tip credit.
6) Taking deductions from payroll for breakage or customers refusing to pay
Employers often deduct monies from the payroll of tipped employees for broken dishes or when customers skip out on their bills. Forcing the tipped employee to pay for these items often takes their pay below allowable tip credit and is a violation.
7) Allowing the employee to work for tips only
As noted above, The Fair Labor Standards Act requires the employer to pay the employee at least the minimum wage for the applicable tip credit. Often, employers will allow an employee to work for only tips, and the employee is not paid any wages from the employer. This is a violation of the Fair Labor Standards Act and would entitle the tipped employee to the full minimum wage plus an equal amount of liquidated damages.
If you believe you may have been wrongly paid, you may be entitled to unpaid wages plus liquidated damages. Call the attorneys at the Law Office of J.J. Talbott for a free confidential consultation today at (850) 695-8331, or contact us via email today.
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