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Server Rites

Workers Compensation Law Discussion

Server Rites

Postby Fahy » Sun Nov 13, 2016 8:00 am

I work at a small restaurant in Indiana, and we have 3 managers one of them is salary. The one on salary is our general manager. She will not call a bartender in on her shifts if they call off, instead she will work as a manager and the bartender and require all servers that shift to tip her out. I was just wondering if this was legal since she is making her salary as well. Also as a server my overtime rate is 1.5 times 2.13, but to my understanding my regular rate is 2.13 plus the tip credit to equal out to federal minimum wage. If that is true should my overtime rate be 2.13 plus half of minimum wage?  Thank you for your time in advance.
Fahy
 
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Joined: Mon Jan 20, 2014 4:26 am

Server Rites

Postby Dae-Hyun » Tue Nov 15, 2016 11:48 pm

I work at a small restaurant in Indiana, and we have 3 managers one of them is salary. The one on salary is our general manager. She will not call a bartender in on her shifts if they call off, instead she will work as a manager and the bartender and require all servers that shift to tip her out. I was just wondering if this was legal since she is making her salary as well. Also as a server my overtime rate is 1.5 times 2.13, but to my understanding my regular rate is 2.13 plus the tip credit to equal out to federal minimum wage. If that is true should my overtime rate be 2.13 plus half of minimum wage?  Thank you for your time in advance.
Dae-Hyun
 
Posts: 48
Joined: Sat Jan 18, 2014 9:39 am

Server Rites

Postby Chagiah » Thu Nov 17, 2016 4:29 pm

Stanford:

It appears to me that your employer may have at least one serious FLSA compliance problem, based on your question.

First, with respect to your regular rate, if your employer takes the "tip credit" and only pays you the minimum cash rate for tipped employees of $2.13, you are entitled to overtime pay based on the full Federal minimum wage of $7.25, or 1.5 times $7.25 for each overtime hour worked.  If you are not getting enough tips each week to equal the minimum wage, the employer must make up the difference.

Second, from the way you describe the manager's practice of requiring the servers to "tip her out" when she works the bar, I take it you have a tip pooling arrangement.  That is perfectly lawful so long as the employer only takes the tip credit for the amount of tips you actually receive.

There is nothing unlawful about the manager doing this, but if the manager is paid as a tipped employee when she works the bar, the employer can only take a tip credit as to her pay for the hours she actually works as a tipped employee. That wasn't really your question, but it is another part of the law relating to tipped employees so I thought I would mention it.

Here is a link to a very informative "fact sheet" from the US Department of Labor on tipped employees under the FLSA:  http://www.dol.gov/whd/regs/compliance/whdfs15.htm

I believe you need to talk with your employer about your overtime rate and point out that it must be calculated based on the full Federal minimum wage.  If you don't feel comfortable doing that, then I'd suggest you contact the nearest office of the DOL.  You can find contact information for all DOL offices in Indiana here:http://www.dol.gov/whd/america2.htm#Indiana

I hope this is helpful, and that you are able to resolve your issues with your employer.
Chagiah
 
Posts: 38
Joined: Fri Jan 31, 2014 2:39 pm


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