Best Ohio Wage And Hour Lawyer Answers: What can I do if my boss is taking part of my tips? Do I have to tip out back of the house employees? Can I sue my employer if I am not making minimum wage even after adding in all of my tips?
The one thing that I love most about the holiday season is not the family get-togethers, gifts or decorations; it is all the eating. I have to admit it, I love going out to a good meal and there is a lot of them this time of year. I have also been on the opposite side of the meal service as I served tables at a restaurant before I went to law school. Many restaurant patrons really got into the holiday spirit and tipped us very well. Yet, there were always the canoes (no matter what you did, you could not get them to tip). Our wage and hour attorneys understand how important tips are to waiters and waitress trying to make ends meet while still buying holiday gifts.
Our wage and hour lawyers have previously blogged about tipped pool violations that improperly take tips earned by servers away from them. (See Top Wage and Hour Lawyer Reply: Can I Be Forced To Tip Out Hostesses?; Is Your Employer Sharing In Your Employee Tip-Pool? If So, They May Owe You Wages!; Top Wage Lawyer Reply: I’m A Server. Should I Be Paid Overtime At Time And A Half?; Top Wage Lawyer Response: Can A Restaurant Force Wait Staff To Share Their Tips With Kitchen Staff?; and Top FLSA Lawyer Reply: Can My Job Withhold Service Charges Separate From My Tips?). We fight really hard to stop wage theft
The Fair Labor Standards Act (“FLSA“) defines tipped employees are those employees who customarily and regularly receive more than $30 in tips per month, which is obviously not a high threshold. Employers are allowed to pay tipped workers less than the minimum wage by taking a tip credit based on actually received tips, but can only take a tip credit of up to $5.12 per hour. Additionally, employers can set up a tip pooling or sharing arrangement among employees who customarily and regularly receive tips, but cannot require that the tips be giving to employees that don’t customarily receive tips and still stake the tip credit. Further, according to the Department of Labor (“DOL“) Fact Sheet #15: “Tips are the property of the employee. The employer is prohibited from using an employee’s tips for any reason other than as a credit against its minimum wage obligation to the employee (‘tip credit’) or in furtherance of a valid tip pool.” However, the Ninth Circuit has taken a different approach, which was recently addressed in the case of Allison v. Dolich, which was decided by the United States District Court for the District of Oregon. In Allison, the complaint alleged that the employer violated the FLSA by requiring its tipped employees to participate in a tip pool that was invalid because it distributed part of the tips to the general manager (whether or not she was actually in the restaurant), other managers, and the back-of-the-house staff. In responding, the employer relied on the Ninth Circuit Court of Appeals decision in Cumbie v. Woody-Woo, Inc., as well as several other Ninth Circuit District Court cases, that allowed the sharing of tip pool money with managers and other employees that do not customarily receive tips when the employer does not take the tip credit and pays the tipped employees the full amount of minimum wage or more.
In Allison, the District Court dismissed the employees claims holding:
As Defendants paid Plaintiffs an hourly wage in excess of the federal minimum, they did not take a tip credit and are not restricted by the Act….the court noted the purpose of the Act – to “protect workers from ‘substandard wages and oppressive working hours’ “ – did not support restrictions on tip pools where the employer was paying a wage in excess of the federal minimum. Id. (quoting Barrentine v. Ark.-Best Freight Sys., Inc., 450 U.S. 728, 839 (1981)). “Our conclusion that the FLSA does not prohibit Woo’s tip-pooling arrangement does not thwart this purpose. Cumbie received a wage that was far greater than the federally prescribed minimum, plus a substantial portion of her tips. Naturally, she would prefer to receive all of her tips, but the FLSA does not create such an entitlement where no tip credit is taken.” Cumbie, 596 F.3d at 582-83 (emphasis in original).
The DOL, have taken note of this line of cases in the Ninth Circuit, issued the amended Fact Sheet #15A, which contains this proclamation in a footnote: “As a matter of enforcement policy, the Department has decided that it will not enforce its tip retention requirements against any employer that has not taken a tip credit in jurisdictions within the Ninth Circuit while the federal government considers its options for appeal of the decision. The Ninth Circuit has appellate jurisdiction over the states of California, Nevada, Washington, Oregon, Alaska, Idaho, Montana, Hawaii, and Arizona; Guam; and the Northern Mariana Islands.”
Those living in Ohio may have breathed a sigh of relief when reading that list, but in Strange v. Wade, the United States District Court for the Southern District of Ohio, Western Division applied Cumbie to deny the employees request for judgment as a matter of law that there was an invalid tip pool because there was no evidence that the employees were making less than minimum wage. This holding cannot be viewed as strictly adopting or enforcing Cumbie, but our wage and hour attorneys are following to see where this goes.
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.
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.