Tuesday, February 3, 2015

Are Servers and Bartenders Protected by the Fair Labor Standards Act?

Authored By:  Heath C. Murphy, Esq

It is a regular occurrence in the hospitality and restaurant industry to pay servers, bartenders and other tipped employees less than the full minimum wage.  It is also common practice to force the servers and bartenders to split their tips with bus boys and hostesses, thereby supplementing the pay of those individuals to allow the restaurant owner to pay those employees at a rate lower than the full minimum wage.  Currently, in Florida, all tipped employees must be paid $5.03 per hour by the employer

The Wage and Hour Division of the U.S. Department of Labor regulates The Fair Labor Standards Act (FLSA) which establishes minimum wage, overtime pay, recordkeeping, and child labor standards that may affect full time and part time workers in private businesses and also State, Federal and local governments.  The FLSA provides protections to servers, bartenders and tipped employees.  For example, an employer cannot force a tipped employee to work off the clock for any reason.  Tipped employees are entitled to overtime wages. 

Every tipped employee has at least two parts to their job.  One part relates directly to earning tips.  Activities such as talking to tables, taking orders, running food, bussing table etc would fall in this category.  Then there are the behind the scenes responsibilities such as opening and closing sidework.  Some restaurants actually have server assist in the preparation of food.  A good general rule is that if more than 20% of your hours are spent doing the tasks not directly related to service of the customer then the employer must compensate the employee at the full minimum wage amount of $8.05.

Another big area where tipped employees are at risk is the payment of overtime hours.  Tipped employees are entitled to be 1.5 times the full minimum wage amount less the maximum tip credit amount allowed.  In Florida, that means that a tipped employee must be paid at least $9.06 per hour for each hour of work in excess of 40 during a particular work week.  Commonly, employers either refuse to pay overtime at all or attempt to pay 1.5 times the lower tipped employee rate.  Neither are acceptable solutions.

Another dilemma that is common to hear is that the employer is keeping a portion of the tips to pay the kitchen staff or to pool to pay for broken dishes.  This practice is also prohibited by the FLSA.  Tipped employees may be required to tip pool with other commonly tipped employees such bartenders, other servers and hostesses.  However, if the employer forces tipped employees to share tips with non-tipped employees or tries to retain tips for other improper purposes the employer will be forced to pay that tipped employee the minimum wage amount of $8.05.  Remember, the tips you earn are your property. 

An employee looking to file a claim for wage or overtime compensation must do so within a specified time period.  There is a statute of limitations in the State of Florida for filing such claims.  In Florida, you must file your claim within two years of the date which you were entitled to earn the pay. As an employee, you are eligible to recover wages retroactively two (2) years from the date of filing your claim.

There are certain exceptions to the general rules for tipped employees.  If you or someone you know are faced an employer paying tipped employees correctly, contact an experienced St. Petersburg wage and overtime attorney  for a free consultation to determine your rights.

If you feel that your employer has not paid you hours for which your are entitled or has misappropriated you tips, you should immediately call The Law Offices of Bobby Jones at (727) 571-1333 during regular business hours or (727) 753-8657 on weekends or after regular business hours. I can be reached via email at hmurphy@bobbyjoneslaw.com

We will evaluate your case for free and you will never pay us a dime unless we recover compensation for your unpaid hours.

The Law Offices of Bobby Jones
6570 30th Avenue North
St. Pete, FL 33710