Monday, March 16, 2009

Question & Answer


Question;

Dear Mr. Kuvin,

As I said before each server automatically has 6% of their sales taken out for tip share. On an average night this can be anywhere from $25-50 per server with about 7-10 servers working. Based on discussions with the service bartender... the bartender, busboy, and food runner are each given $60-$80 per night, depending on if it is a week day or week end. This means that instead of taking the actual tip share and dividing it evenly among the support staff, the restaurant is keeping it and paying out a set amount to the support staff. If you do the math, there is a huge excess of tips not being shared with the support staff on a daily basis. The manager explained that it helps to offset the amount he pays the support staff on the slower nights or out of season. But this just doesn't seem right or fair. It seems as if the restaurant must be making extra money off this.

I don't even believe they are paying the support staff an hourly wage. I think they are purely paying them based on our tip out. It all seems very illegal and highly unethical. The servers that have been there awhile put up with it and haven't said anything because they were making upwards of $200 per night when they started there. These days, due to the economy, we are lucky to make $100 per shift, so the enormous tip out is putting a huge dent in our income.

I was hoping there was a guideline or law against forcing servers to tip out, or at least a cap on the amount. Since there isn't, I don't think there is much I can do here short of reporting them for illegal activities which is a road I really don't want to go down. It's easier to just find another place to work!

I appreciate any advice you have to offer.

Thank you,

Name Removed for Privacy


Answer:

There are basically two separate groups of laws at play here; Florida state laws and Federal FLSA (Fair Labor and Standards Act) laws.

Federal law requires employers to pay workers a minimum wage. If the employee earns tips as part of their wages, federal law allow the employer to take a tip credit in the amount of $3.02/hr. The State of Florida requires employers to pay an hourly wage rate which is higher than the federal minimum wage, however, the employer can still take the tip credit against the higher Florida wage rate. Currently the minimum wage in Florida is $7.17/hr. Subtract the $3.02 tip credit and you get $4.15/hr. Employers must pay all of their employees at least one of these two hourly wages.

If the restaurant is forcing you to tip the house and then using the money to pay the support staff their hourly wages they are violating the FLSA. An employer must pay their employees at least the minimum wage. Since the employer does not have any type of property interest in your tips, they are not paying the support staff any type of wages.

There is an exception to this rule, however, the fact scenario above does not hint of the elements which would cause me to change my opinion.

There is not any type of official State or Federal guideline to how much an employer can force you to tip out the support staff, however, there is case law which suggests that tips are earned by servers as a part of their wages and that they should be the main beneficiary of those tips.

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