Side Work May Violate Wage Laws

Statistics show that the restaurant industry provides jobs for 15 million people and generates $799 billion each year. Despite the size and scope of the restaurant industry, a countless number of restaurants routinely commit violations of the Fair Labor Standards Act and other state and federal wage and hour laws. For example, many restaurant servers are asked to perform non-tipped tasks on the side – commonly known as side-work – for which they are not compensated or only compensated at the sub-minimum hourly wage. There are substantial limitations on what tasks employers can ask servers to perform as well as what type of compensation those employees must receive for performing those tasks including side-work.

Common Types of Non-Tipped Side Work for Servers

Some of the most common types of non-tipped side work for bartenders include the following:

• Emptying ice bins or refilling ice containers
• Cleaning the bar, which might include sweeping or vacuuming
• Covering liquor bottles
• Doing inventory or restocking the shelves
• Lighting or putting out candles
• Polishing wine glasses
• Resetting tables
• Rolling silverware
• Taking out the garbage

What a Server Should Receive for Non-Tipped Side Work

The Fair Labor Standards Act allows restaurants to claim an amount of tip credit up to the difference between the federal minimum hourly wage of $7.25 an hour and the sub-minimum hourly wage of $2.13. Despite this requirement, many servers and bartenders spend a significant amount of their time at work performing non-tipped work at the sub-minimum hourly rate. In reality, few restaurants actually adequately compensate servers for performing side-work because the bar or restaurant owner argues that the server’s overall earnings exceed the federal and/or state minimum wage. Consequently, many servers end up working a great number of hours on the job at the sub-minimum hourly rate (which is $2.13 an hour unless you work in a state where the sub-minimum hourly wage is higher).

The Amount of Non-Tipped Side Work a Restaurant can Require

Many bars and restaurants follow the 80/20 tip credit rule, which prohibits an employer from claiming a tip credit if a server spends more than 20% of his or her time performing side work. Federal courts, however, have questioned the applicability of the 80/20 rule.

Speak with a Knowledgeable Wage and Hour Lawyer

If you are interested in learning more, please visit our Legal Center for Restaurant Employees or call us to schedule a consultation 817-479-9229.

Tipped wage violations are one of the most common types of wage and hour violations that are known to occur. If you are a bartender or server with questions about your wages or believe that you have been unfairly compensated by an employer, you should not hesitate to speak with a knowledgeable wage and hour lawyer. Contact the wage and hour attorneys at Herrmann Law today to speak with an experienced attorney who will remain committed to making sure that you receive the compensation you deserve. You can reach us by calling 817-479-9229 or completing our online form and someone from our office will contact you.