Side Work and Restaurant Servers: Know your rights as a tipped employee

If you work as a server in a restaurant and you are paid what is called a tip credit wage, you should be mindful of how much side work you can be required to do. Firstly, a tip credit permits employers to pay employees who regularly receive tips, such as servers and bartenders, less than the federal minimum wage. The federal tip credit is $2.13 per hour, which can be deducted from the minimum wage of $7.25, resulting in a tip credit wage of $5.12 per hour. Florida has a tip credit of $3.02 per hour, which when deducted from the Florida minimum wage of $12.00, results in a tip credit wage of $8.98 per hour.

Employees who are paid a tip credit wage must be permitted to keep all of their tips. If your employer requires you to share your tips with nontipped workers or managers, your employer cannot take a tip credit. What can get even more confusing is the issue of side work. Examples of side work are rolling silverware, restocking the cash register tape, cleaning highchairs and boosters, spot sweeping the floors, restocking napkins, restocking condiments such as ketchup, mustard and mayonnaise, bagging and storing left over food, restocking paper supplies for take-out, wiping down counters, cleaning windows, cutting fruit, re-filling salt and pepper shakers, etc.

If you are spending more than 20% of your time performing side work duties, then your employer is not permitted to utilize the tip credit for those hours. That means that you are entitled to the full minimum wage for that time. By way of example, if you work a 5-hour shift, and you spend about 90 minutes doing side work, then you are owed the full minimum wage because 90 minutes of a 5 hour shift is 30% of your time. In that situation, if you were paid $8.98, you would be owed $4.53 ($3.02 times 1.5 hrs). You might think that $4.53 is such a small amount that you shouldn’t be worried about it. Ultimately, that’s your call; however, when you look at the big picture, you could be owed significantly more. Allow me to explain.

Let’s say you are working six (6) five-hour shifts per week under the same example above. All of a sudden $4.53 becomes $27.18 each week. The statute of limitations in Florida to recover minimum wages allows a 4-year lookback (5 years for willful violations). In addition to recovering your unpaid minimum wages, the law allows you to recover liquidated damages in an amount equal to the minimum wage that is owed. In this example, $27.18 becomes $54.36 per week. If you are a long-time employee, your claim could easily exceed $10,000.00 or more.

The Department of Labor, in 2021, added a “30-Minute Rule”, which results in an employer losing the tip credit when a tipped employee spends more than 30 continuous minutes performing side work. This holds true even if the continuous time spent on side work is less than 20% of the employee’s total work for the week.

By way of example, if your shift is from 10:00AM to 4:00PM, and the restaurant doesn’t open until 11:30AM, your employer cannot pay you the tip credit wage until you start serving customers. It’s important that you keep track of the time that you spend doing side work so that you receive your full wages under the law. If you are required to do too much side work, call Robert S. Norell, P.A. for a free case evaluation.