Legal Center for Restaurant Employees
Most Common Questions
As a waiter or waitress, you have more than likely been the subject of numerous wage violations over the years. Restaurants are some of the most common violators of federal wage laws. We have represented countless waiters and waitresses and have seen our fair share of illegal practices. Below is a list of common questions that we think we would have if we were in your shoes.
1) My employer is violating the law, how can I afford to hire a lawyer?
We regularly take cases on a contingency basis. If we take your case on a contingency, we will only be paid if we are successful in obtaining a settlement or win at trial. In either case, our law firm will be paid out of your settlement — by your employer. If we are unsuccessful in recovering wages, we will be paid nothing.
2) How much can I recover?
If it is determined that your employer has violated the federal tipping laws, you are entitled to recover damages in the following amounts:
- The minimum wage differential multiplied by every hour worked in past two years.
- Since your employer violated the law that allows them to pay you at the subminimum wage rate, your employer has lost the right to pay the subminimum wage and must make up the difference between the subminimum wage they paid your and the full minimum wage, multiplied by every hour worked in the past two years. If you are in a state where there is no state law setting a higher minimum wage rate, you would be entitled to recover $5.12 for every hour worked ($7.25 – $2.13 = $5.12).
- The amount of your misappropriated tips
- You are also entitled to recover all of the tips that your employer illegally retained from you and any amounts that it charged you for items that are considered a cost of doing business.
- “Double Damages”
- You are also entitled to a “double award” in an amount equal to the amount of the minimum wage differential plus the amount of misappropriated tips.
- Attorneys’ Fees and Costs
- Finally, you are also entitled to recover your attorneys’ fees and costs that were incurred in pursuing your claim. Luckily, this is what allows my law firm to take these cases on a contingency basis, meaning you will not owe us for any fees or costs unless we obtain a recovery on your behalf. Our fees and costs will never exceed the amount you recover.
3) Can my employer fire me or cut my hours if I file a lawsuit or talk to a lawyer about my claims?
Federal law prohibits your employer from firing you or taking any adverse action against you because you decided to bring a lawsuit against them. This is called retaliation. The law includes an anti-retaliation provision, which is designed to encourage people to come forward without fear of any negative repercussions from their employer. The laws can only protect those who come forward to enforce them and collect their back wages. The waiters and waitresses who come forward are not only able to collect their back wages, but by taking a stand, they motivate change so that other servers do not continue to be subjected to unfair wage practices.
4) If I cannot absolutely prove my employer is violating the law, do I still have a case?
One issue that often arises is when waiters and waitresses cannot absolutely prove their case. However, employees do not have to “prove” where their tips went; it is the employer’s burden to prove that the employee received all tips and which employees shared a portion of the waiters or waitresses’ tips. We obtained a sizable recovery for a group of waiters and waitresses against a well-known Texas restaurant, where the servers were tipped-off (excuse the pun) by the host that the tip-out was very low. As it turns out in that case, the owners and managers were skimming funds from the tip pool for themselves – explaining why the host felt the tip out was low. The practice of owners or managers skimming money from tip pool or failing to redistribute the entire amount of tip pool is illegal – which resulted in the restaurant paying our clients a large settlement.
5) How much is minimum wage?
The Federal minimum wage is $7.25/hour and under federal law, employees earning tips may be paid as little as $2.13 per hour. However, if you live a state that has established a higher minimum wage, then you must be paid the higher wage.
6) Do I have to share my tips with everyone on staff?
No- even if you work at a restaurant that “pools” tips, tips can legally only be shared with other employees who directly interact with customers.
7) If I file a complaint about my unpaid tips or wages, can my employer fire me or demote me?
No this is considered retaliation and is not legal. Your employer cannot terminate you, demote you, change the terms and conditions of your employment because you have filed a lawsuit to recover your tips or wages.
8) My customers left the restaurant without paying their bill. Can my boss take the amount of their bill out of my tips?
Your employer cannot charge you for anything that is considered to be a normal cost of running a business. Costs of doing business and other typical business expense cannot be passed along to you by your employer.
9) When our restaurant is slow, I often do side work like restocking shelves and filling the salt and pepper shakers. Can my employer pay me less for doing this work?
Your employer must pay you the full minimum hourly wage (i.e. at least $7.25 or more if your state has adopted a higher minimum wage) whether or not you are interacting with customers. The one exception is when you are performing duties related to serving customers (i.e. “side work”) — but only if your side work makes up less than 20 percent of your work. However, if your side work exceeds 20% of your work, then your employer may not pay the subminimum hourly wage. In addition, your employer may not pay the subminimum hourly wage for any time spent (regardless of how little or how much) spent performing unrelated duties such as refilling ice bins, restocking food, vacuuming, cleaning, and other duties not related to serving customers.
10) Can my boss participate in the restaurant’s tip pool?
No, management is prohibited from participating in a restaurant’s tip pool it is only intended to be for restaurant employees who interact directly with customers.
11) If the restaurant is slow and I’m not making tips, will I still make minimum wage?
Yes, legally your employer must pay you enough to make up minimum wage.
12) If the restaurant is really busy, and I’m making a lot of money – more than minimum wage, can my employer take some of my tips?
No – you are entitled to the tips that you earn. Your employer cannot take any of your tip money – even if it is significantly more than minimum wage.
13) Can management make me eat meals at the restaurant I work at and then charge me the full menu price for those meals?
No, this illegal.
14) Do I get to keep all my tips?
You work hard to earn your tips – they are a reward for your hard work and a significant part of your overall income. If you work in the service industry, it is important to know about the legal protections that are in place to ensure that you are properly compensated for your work.
Your tips are your own, your employer does not have the right to ask you for any portion of your tips, unless one of the following exceptions apply:
- Your company has a valid tip pooling arrangement – which means that tips can be combined and then disbursed among only the employees who have helped service customers.
- Your company can deduct a credit card processing fee from your earned tips – but they can only charge you the exact amount that they are charged for credit card processing and absolutely no more than that.
The current federal minimum wage is $7.25/hour. A tip credit, which is guided by federal law, means that your employer doesn’t have to pay you minimum wage, provided that you earn enough in tips to bring your hourly wage up to at least $7.25. The maximum tip credit an employer is allowed is $5.12/hour. However, there is a common misconception in the industry that if a server’s hourly wage plus tips exceeds minimum wage then your employer can take your tips as long as you earn the minimum wage. Regardless of how much you earn in tips above the minimum wage, federal law tightly regulates where your tips go – your employer cannot take any of your tips. Your employer cannot require you to share your tips in an illegal tip pool, nor can your employer make deductions from your pay.
In addition to the above, of course, your employer is also required to deduct money for taxes. Otherwise, by law, all tips you earn are yours to keep.
15) If my restaurant pools tips, do I have to share my tips with everyone on staff?
Tip pooling is a fairly common practice in the service industry. Employees combine a certain percentage of their tips with that of their coworkers, and all the tips that are “pooled” are then distributed among employees who interact with customers. While not all of the participants in the tip pool need to earn tips directly from customers, all of the participants must be in some way involved in serving customers. The restaurant owner, managers, supervisors, cooks, dishwashers and other kitchen staff cannot be included in a tip pool. If your company distributes pooled tips to back-of-the-house, kitchen staff, managers, or others who do not directly interface with customers, this is considered to be an illegal tip pool and you may be entitled to the full minimum wage for all of the hours that you worked, all of the tips that you contributed to the pool, and possibly even more money. We can help you figure out if ineligible employees are a part of your company’s tip pool, or if the restaurant owners and managers are failing to properly distribute all pooled tip money, and if you may be entitled to damages. Contact us for a consultation 817-479-9229 or contact us online and someone from our office will contact you within 24 hours.
16) What is tip theft?
If a customer doesn’t pay what they owe, or leaves without paying the bill, you are not responsible for the charges. Your employer cannot take this money out of your wages or tips. If there is a cash shortage at the end of the workday, your boss cannot ask you to make up the difference through your wages or tips. These are two common practices that can be categorized as tip theft. A few other examples (but certainly not an exhaustive list) of illegal tip theft include:
- Employers charging employees for broken dishes.
- Employers requiring staff to purchase their own uniforms.
- Restaurants charging servers a “house fee.”
- Restaurants requiring employees to eat meals at their restaurants and charging them the full menu price for their meals.
Generally, an employer cannot charge you for anything that should be considered a day-to-day cost of running their business.
17) Can I be paid server wages to do side-work?
“Side work” – or work you do to help the restaurant when the restaurant is slow, such as filling salt and pepper shakers and rolling silverware, obviously does not allow you to earn tips. Thus, you are performing such tasks at less than minimum wage. If the amount of side work you are asked to do is fairly minimal, your employer can use a tip credit to make up the difference between your hourly rate and minimum wage. However, this is only applicable if the side work is related to your job makes up less than 20 percent of your work. If more than 20 percent of the hours you spend are on side work, your employer is required to pay you minimum wage, and not your hourly rate, for any time you are spending doing work that doesn’t garner tips for you.
18) Are gratuities and service charges treated the same way as tips?
Gratuities are different than tips in that service charges or gratuities are mandatorily added to the actual bill total, and a tip is additional compensation that is voluntarily given by the customer and added to the bill. Often restaurants add an automatic gratuity charge of 15-20% for large parties, but gratuities are not tips. Employers are allowed to keep a portion of a gratuity charge, and do not have to give any portion to the servers. Whatever they do decide to give to the employee is considered to be a non-tip wage. Therefore, any additional compensation you receive through a mandatory gratuity cannot be added to the tip credit calculation, and may have an effect on the rate that you are paid for overtime. Legally, wait staff is entitled to overtime pay for any time worked above 40 hours a week, and overtime pay is time and a half (in other words, one and half times your hourly wage). If you received any mandatory gratuity as a part of your earnings, and worked overtime, you are entitled to a higher rate of compensation. If you think you may have missed out on some of the pay you are entitled to because of gratuity charges, get in touch with us for a consultation at 817-479-9229 or contact us online and someone from our office will contact you within 24 hours.
19) If my employer has inappropriately taken some of my tips or charged me for something I shouldn’t be responsible for, will I get repaid?
Yes, you may be able to recover the money that is owed to you. If you believe that your tips have been misappropriated, you should consult with an attorney who specializes in employment law issues in the service industry to help you recover what should be rightfully yours. If your employer hasn’t paid you appropriately, you may be entitled to:
- The full minimum wage for every hour you worked in the last 2 or 3 years multiplied by 2. In other words, your employer must retroactively pay you the full minimum wage for the previous 2 or 3 years. If you are paid $2.13 per hour, your employer would have to pay you an additional $5.12 per hour for every hour you worked in the previous 2 or 3 years, which is then multiplied by 2. Basically, you are entitled to recover $10.24 per hour for every hour you worked in the past 2 or 3 years!
- All of the tips that your employer illegally retained from you and any charges you may have incurred that were just part of the company doing business.
- Again, any damages (reparations for lost wages) you recover are then doubled – a “double award” in an amount equal to the amount of the minimum wage differential plus the amount of misappropriated tips.
The attorneys’ fees and costs you incurred in pursuing your claim against the employer. If we take on your case, our fees and costs will come out of your settlement. If we are unsuccessful in recovering wages, you will owe us nothing and we will be paid nothing. We will never ask you for money if we are unsuccessful in recovering money on your behalf.