Employees who earn tips often have different sets of rights than employees who get an annual salary or hourly wages. The rights of tipped employees can be complicated and, unfortunately, are often violated by employers.
At Green Savits, LLC, our experienced attorneys have represented many employees in federal and state trial and appellate courts who have been denied minimum wages, overtime compensation, bonuses or commissions to which they were entitled. We understand the complex laws related to wage and hour violations, and we are prepared to fight vigilantly on your behalf to protect your rights and best interests.
Employers can legally pay servers $2.13 per hour and then use servers’ tips in order to make up the difference between that rate and minimum wage. However, in order to take advantage of what amounts to legal wage theft, employers have to abide by certain requirements:
There are also stringent requirements for tip pooling. Employers must notify employees if they are going to require tip pooling. The tip pool cannot be used for any purpose other than to compensate employees sharing in the pool. An exception to this is that employers may take credit card service charges out of the tip pool for credit card tips.
Most importantly, the tip pool must only be shared among employees who “customarily and regularly” receive tips. This is the most confusing and therefore most violated of all the requirements. It is clear that servers are entitled to the pool and janitors are not. But there are other jobs where the duties are varied and it is unclear whether or not those people should be allowed to share in the pool. Food runners don’t normally get tipped, but it is generally agreed that they can share in the pool. On the other hand, restaurants often require that expediters share in the pool and it has generally been found that this is a violation.
The rule of thumb is that anyone who regularly works in the front of the house, such as servers, bartenders, bussers, food runners, and hosts, can share in the pool. Anyone who works in the back of the house, such as cooks, dishwashers and expediters cannot.
The important thing to remember about these requirements is that ANY violation can lead to an entire invalidation of the tip credit. If an employer requires servers to share their tips with someone who is not entitled to do so, the employer will not only be required to restore the improperly shared tips, but will also lose the entire tip credit.
Under federal law, the maximum tip credit that can be taken is $5.12 per hour. Depending on the size of the employer, multiplying the number of hours that all servers worked over a two or three year period by $5.12 per hour can, and often does lead to millions of dollars in damages.
If you believe your rights have been violated by your employer, contact Green Savits, LLC today online or at (973) 695-7777 today to discuss your case. We proudly serve Northern and Central New Jersey.
All Rights Reserved | Green Savits LLC
*No aspect of this advertisement has been approved by the Supreme Court of New Jersey. For Super Lawyers methodology, see www.superlawyers.com.