Best Ohio Wage And Hour Lawyer Reply: What should I do if my boss won’t pay me an hourly wage on top of my tips? How much should I be paid as a tipped employee? Are tipped wage employees entitled to overtime pay at time and a half?
A lot of employers of tipped employees try to justify not paying those workers a wage by thinking that they are already getting a lot of money in tips. The bosses or managers would say, why should I pay them more when they are raking in the tips. These same bosses and managers may think that they are doing the tipped employee a favor by making them work extra shifts because of all of the extra tips that will be made; and why should the tipped employee be entitled to even more for working overtime.
Our wage and hour attorneys have blogged about employees’ rights to minimum wage under the Fair Labor Standards Act (“FLSA“). The federal minimum wage is $7.25 per hour for non-tipped employees and $2.13 per hour tipped employees as long as the tips actually received would bring the worker’s hourly wage above $7.25 per hour. Moreover, states, like Ohio, can choose to provide a higher minimum wage to employees, and an employee is entitled to the higher of the federal and state minimum wages. (See What Is Minimum Wage In Ohio For 2016? ). Paying employees less than the full minimum wage based on received tips from customers is called a tip credit. Employers can lose the ability to apply the tip credit for a variety of reasons, including managers and owners taking part of the tips; or forcing the employees to share tips with traditionally non-tipped employees. (See Can My Boss Ever Share In A Tip Pool? Best Wage Lawyer!; My Boss Will Not Let Me Keep My Tips! – Call The Right Attorney; and Can I Be Forced To Tip Out Hostesses? – Call The Right Attorney).
Now that we have the basics of minimum wage for tipped workers, an employee who is covered under the FLSA and who works over 40 hours per week is entitled to overtime pay at a rate of at least one-and-a-half times their standard hourly rate. (See Should I Be Paid Overtime Even If I’m A Manger? Lawyer Reply; Law: As A Salaried Employee, Am I Exempt From Overtime Pay?; and How Do I Prove That I Was Not Paid Overtime? – Call The Right Attorney). Tipped employees that work overtime must be paid time and a half the full minimum wage. Thus, tipped workers getting $2.13 per hour for regular time should be paid one and half times the minimum wage of $7.25 (which comes out to $10.88) for each hour worked over forty hours in the given work week. Our overtime law lawyers have also blogged about this before. (See Are Tipped Workers Entitled To Overtime? – Call The Right Attorney; and Top Wage Lawyer Reply: I’m A Server. Should I Be Paid Overtime At Time And A Half?).
While this seems rather straight forward, yet another employer has run afoul of these wage and hour law. According to a lawsuit, KWLT, LLC, which owned Platinum Plus in Allentown, Pennsylvania violated many of the laws all at once. You see, Platinum Plus is a strip club and it refused to pay its dancers any wages. Strike one. Then the owners made the dancers pay part of its tips to the club, which the club kept for profit and to pay the salaries of other employees. Strike two. To make matters worse, the boss often required the dancers to work well over 40 hours per week without paying overtime, which I guess is implicit in the fact that the employer was not paying any wages anyways. Strike three. So the dancers sued.
Given the above wage theft violations, our FLSA lawyers would expect that the employer would have been responsible for paying each employee the full $7.25 per hour for every hour worked under 40 hours and time and half for all hours over without getting a tip credit because stealing tips and not paying the $2.13 as required. Faced with such clear liability, the employer agreed to settle with the group of dancers for $283,000.
It is unclear why the employer thought it could get away with such blatant violation, but our wage theft lawyers have addressed these problems with strip clubs before, and most seem to argue that the strippers are independent contractors. (See As An Exotic Dancer; Do I Get Overtime And To Keep My Tips?; and Am I Being Misclassified As An Independent Contractor?). In the second link, our wage and hour lawyers quoted U.S. District Judge Thomas Thrash Jr.‘s decision in
Rejecting the notion that strippers are not independent contractors, and this remains one of my favorite employment law quotes: “Taking your clothes off on a nightclub stage and dancing provocatively are not the kinds of special skills that suggest independent contractor status.” Then Judge Thrash doubled down and said it was clear that the club was the employer because it provided the equipment. And, while most of think hammers, screw driver, laptops, cameras, etc, when thinking of equipment, Judge Thrash went here: “Pin Ups also provided … the poles.”
Are you a waiter, waitress, server at restaurant that depends on tips to live? If you are a tipped employee and believe that your employer is not paying you all of your wages for all of your lawfully earned time or taking part of your tips or participating in the tip pool as prohibited under the Federal Fair Labor Standards Act or Ohio Fair Labor Standards Act, contact the attorneys at Spitz, The Employee’s Law Firm today for a free and confidential initial consultation. The wage and hour lawyers at Spitz, The Employee’s Law Firm will provide you with the best options for your overtime pay dispute situation. If you even think that you may be entitled to overtime pay that you are not being paid, call 866-797-6040.
Disclaimer:
The materials available at the top of this tipped wage violation, wage and hour web page and at this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “Can my boss take my tips?”, “Does my job have to pay me for …”, “My paycheck is not right…” or “What do I do if…”, the your best option is to contact an Ohio wage attorney to obtain advice with respect to FLSA questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at the top of this page or through this site are the opinions of the individual lawyer and may not reflect the opinions of Spitz, The Employee’s Law Firm, Brian Spitz, or any individual attorney.