Best Ohio Wage And Overtime Attorney Answer: What can I do if my job won’t pay me for overtime because I’m a tipped employee? Can you get overtime under federal law even when your primary income is based on tipping? What if an employee doesn’t want to be put on payroll, but instead get paid under the table?
At Spitz, The Employee’s Law Firm, our hard-working wage and hour lawyers often run into issues dealing with employees who haven’t been paid overtime even though they’ve worked over 40 hours per week. (See If I Do Domestic Work, Can I Sue For Overtime Pay? I Need A Lawyer!; Can I Be Forced To Work Overtime For No Pay?; No Overtime Pay For “Independent Contractors”?; and How Do I Prove That I Was Not Paid Overtime? – Call The Right Attorney). In fact, just yesterday, our wage theft lawyers blogged about changes to the overtime laws that will take affect December 1, 2016. (See How Do The New Overtime Rules Help Me? I Need The Top Wage And Hour Lawyer In Ohio!).
As you may know from reading some of our past wage and hour blogs, the Fair Labor Standards Act (“FLSA“) is the federal law which establishes minimum wage and overtime requirements. Under the FLSA, an employee who is covered by the Act 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.
The FLSA also gives us the federal minimum wage of $7.25 per hour for employees. The states 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.
The FLSA can get tricky when dealing with employees who rely predominantly on tips, including wait staff, bartenders, waiter, waitress, server, drivers, and the like. (See Can I Be Forced To Tip Out Hostesses? – Call The Right Attorney; My Boss Will Not Let Me Keep My Tips! – Call The Right Attorney; FLSA Law: Can My Job Withhold Service Charges From My Tips?; and Can My Boss Ever Share In A Tip Pool? Best Wage Lawyer!). The FLSA mandates that tipped employees be paid at least $2.13 an hour in direct wages from their employer.
However, the FLSA says that tipped employees must be paid time and a half the minimum wage even though tipped employees often make less than the standard minimum wage (not including tips). If a tipped employee makes less than time and a half the minimum wage for every hour worked over 40 hours per week, including tips, then the employer must make up the difference.
Yet what if an employee wants to be paid only in tips, for tax or other reasons? Can these employees do that and, if so, are they still eligible for overtime?
In Jackson v. Egira, LLC, a case out of the United States District Court, District of Maryland, several plaintiffs who worked in a restaurant brought suit against the employer restaurant for a failure to pay any kind of hourly wage and overtime under the FLSA. Jackson has a different twist from most FLSA cases in that the defendant-restaurant argued that the employees themselves had requested to be paid only in tips in order to avoid paying taxes.
The employer was contending that the employees could not recover based on their own wrongdoing. Legally, this is called the In Pari Delicto defense, and as the District Court described:
For the in pari delicto defense to bar recovery under FLSA, the “plaintiff [must] bear at least substantially equal responsibility for the violations he seeks to address, and . . . preclusion of the suit would not substantially interfere with the statute’s policy goals.” Lamonica v. Safe Hurricane Shutters, Inc., 711 F.3d 1299, 1308 (11th Cir. 2013) (citing Bateman Eichler, Hill Richards, Inc. v. Berner, 472 U.S. 299, 310-11 (1985); Official Comm. of Unsecured Creditors of PSA, Inc. v. Edwards, 437 F.3d 1145, 1154 (11th Cir. 2006)). The plaintiff “must be an active, voluntary participant in the unlawful activity that is the subject of the suit.” Pinter v. Dahl, 486 U.S. 622, 636 (1988).
The District Court found that some question remained as to whether the plaintiffs had participated in unlawful activity – demanding to not be paid minimum tipped-employee wage under the FLSA and taking tips to avoid paying taxes- and therefore, the defendants could pursue this defense. However, the Court did not determine whether not allowing the employees suit to go forward would interfere with the goals of the FLSA – to provide employees with a fair minimum wage and fair overtime pay.
The lesson to be learned in Jackson is this: make sure that you are always being paid on the books, and that all your pay is documented properly. That way, if you run into a situation where you aren’t being fairly compensated for all the hours you’ve worked, your employer can still be ordered to pay you the overtime you deserve under the FLSA.
If you believe that your employer is not paying you all of your wages for all of your lawfully earned overtime compensation at a rate of one and half times your normal wages as requires under the Federal Fair Labor Standards Act or Ohio Minimum Fair Wage Standards laws or you are an nonexempt employee that has been misclassified as exempt or independent contractor, 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 overtime, 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, “Am I entitled to overtime?”, “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 overtime 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.