What are rights of tipped employees?

I’m a waiter and I’m wondering if it’s legal for my boss to make me do other things other than waiting tables. I am NOT getting paid minimum wage; I’m getting paid half of minimum wage because I’m a waiter and I’m supposed to make up for that in tips. So an hour before, (and however long it takes me) they stop giving me tables and give me a list of chores that I have to do. So I’m thinking that my boss is just being cheap and getting us waiters to do work that she should be paying her back kitchen staff to do because they get paid minimum wage. We’re not getting tipped for rolling silverware. Is this right or am I just not seeing something?

Posted 10-01-2014

Ann Kiernan replies:

The federal Department of Labor has a fact sheet on the rights of tipped employees that you might want to take a look at.

An employer is allowed to take a tip credit toward its minimum wage obligation for tipped employees equal to the difference between the required cash wage (which must be at least $2.13) and the federal minimum wage. Thus, the maximum tip credit that an employer can currently claim under the FLSA is $5.12 per hour (the minimum wage of $7.25 minus the minimum required cash wage of $2.13).

The law does allow 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 waiter 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, where a tipped employee spends a substantial amount of time (in excess of 20 % in the workweek) performing related duties, no tip credit may be taken for the time spent in such duties.

You may want to consult a local employment attorney for more information about your rights. Good luck.

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.

2016-11-18T16:00:38+00:00

About the Author:

Ann Kiernan has litigated claims of wrongful discharge and discrimination before state and federal courts and administrative matters before the New Jersey Division on Civil Rights, the National Labor Relations Board and the Equal Opportunity Employment Commission, representing both employers and employees. Ms. Kiernan co-hosted The Employee Rights Forum, a weekly radio call-in show reaching up to a half-million listeners in the New York metropolitan area, and her articles on employment law have been published in many books and magazines. Both as a firm partner and as a director, Ms. Kiernan gained solid experience in management and human resources compliance. She has worked with Fair Measures since 1997.