According to the Fair Labor Standards Act (FLSA), a tipped employee is a worker who customarily and regularly receives tips that exceed $30 a month. Tipped workers can be paid less than the minimum wage, subject to certain requirements. There are many ways employers can violate the law when it comes to tipped employees, including misclassifying employees as a tipped worker, miscalculating overtime pay on the wrong basis, or operating a tip pool improperly. The Columbus Ohio employment attorneys at Coffman Legal helps tipped workers across Ohio who have been subjected to minimum wage violations, unpaid overtime or other legal abuse by virtue of their status as a tipped employee.
Many special rules exist for tipped employees under the FLSA and Ohio employment law. Some of the most common wage violations that happen to tipped employees are:
The tip credit allows an employer to pay its tipped employees an hourly wage less than the minimum wage since they are also earning tips. The FLSA allows a tip credit of $2.13 against the federal minimum wage of $7.25 an hour. In Ohio, however, employers can pay tipped employees one-half of the state minimum wage. The minimum wage in Ohio is $8.55 an hour, so employers can pay their tipped employees roughly one-half that amount, or $4.30 an hour. In 2020, the general minimum wage will be $8.70 an hour, or $4.35 an hour for tipped employees. Keep in mind that smaller businesses do not have to pay the Ohio minimum wage, but they still must meet the federal minimum wage. If your employer is only paying the federal minimum wage and taking the federal tip credit or the Ohio tip credit, contact our office if you believe they may be paying the wrong wages.
If you are not earning the applicable minimum wage through your wages and tips combined, the tip credit is too high. Your employer needs to make up the difference in wages so that you are paid the minimum wage.
In many restaurants, wait staff perform other job duties that aren’t tipped, such as bussing tables, preparing the tables and place settings, or cleaning up the wait station. If a tipped employee spends 20% or more of the workweek performing these non-tipped duties, the employer must pay the full minimum wage for those duties.
A cardinal rule of tips is that they belong to the employee. The employer cannot make employees turn over their tips, except according to a valid tip pool. In a tip pool, all tipped employees share their tips by pooling them together and then drawing out a percentage of the total take. Tip pools are legal so long as they are done according to company policy, and only employees who customarily and regularly receive tips can participate in the tip pool. Frequent tip pool violations include sharing tips with door attendants, dishwashers or other non-tipped employees, or employers taking the workers’ tips and not sharing the full amount.
If you are a tipped employee in Columbus or throughout Ohio who believes your employer is improperly taking your tips, operating an illegal tip pool, taking the wrong tip credit or not paying overtime correctly, call Coffman Legal at 614-949-1181 for a free consultation with our skilled and knowledgeable Columbus Ohio wage & hour lawyers.