Recently, our wage and hour attorneys have addressed the rights of servers in restaurants to receive minimum wage and how the tip credit works with overtime requirements under the Fair Labor Standards Act (“FLSA”). (Best Law Read: How Does A Tip Credit Work?). Our wage theft lawyers also tackled how the manager, boss or owner cannot share in the tip sharing or tip pool. (Best Law Read: How Do Tip Pools Work?). We’ve delved into the types of damages when tipped-wage employees are not properly paid minimum wages, overtime pay at time and half, or have their tips stolen. (Best Law Read: What Damages Can I Get For Wage Violations And Retaliation Under FLSA?). And our FLSA lawyers also talked about how to get that money back in your pocket. (Best Law Read: How Do You Recover Stolen Wages?). Well, today, we are going to jump right into an example of these violations.
What is an example of tip pool violations?
Best Wage & Hour Lawyer Answer: For today’s FLSA example, we head to Hard Eight BBQ in Roanoke, Texas. Ask any Texan and they will tell you that everything is bigger in Texas, including apparently wage theft. You see, Hard Eight got tagged by the Department of Labor (“DOL”) for failing to pay 910 of its employees $867,000 in tips and overtime. Now, this is over a two-year period and across five restaurants, but whew that is a Texas sized wage heist.
Let break down what happened. First, the restaurant let the floor managers participate in the tip pool. According to a statement, Hard Eight’s executive director, Katie Gooch, blamed the theft on thinking that it was okay for managers who are “deeply involved” in engaging with guests could share in the tip pool and not understanding “new rules.” Respectfully, this explanation is a Texas-sized load of manure. The DOL found that the violations have been going on for more than two years, which means that the conduct violated the prior rules from before the November 23, 2021 rule clarification. Indeed, managers were never allowed to share in a tip pool just because they engaged clients or customers. The FLSA clearly and unequivocally provides that employers are strictly prohibited from allowing owners, managers, and supervisors from confiscating or otherwise keeping tips received by the waiters, waitress, servers, bartenders, or other service staff. This is an absolute require and it does not matter if the employer claims a tip credit under the FLSA or not.
As a result of this tip pool violation, the employer loses the right to claim a tip credit and must pay the employees the full minimum wage for the time in question plus the withheld wages. Additionally, the FLSA requires liquidated damages in the amount of lost wages to be paid to the employees. However, it looks like the DOL unilaterally chose to waive the tip credit damages and the liquidated damages –a problem employees face when allowing the DOL to pursue the claims is that the DOL has full discretion to resolve claims for less than full value with no input from the employees. This is why it is always important to get your own private wage and hour attorney to handle and oversee your case.
What is an overtime pay violation example?
Best Overtime Attorney Answer: To make matters worse, Hard Eight used the tip sharing money to give to managers as part of not paying those managers overtime. Further, Hard Eight paid its hourly employees only half-time for overtime. Under the FLSA, employers must pay employees time and a half when they work more than 40 hours in a designated work week. Employers cannot unilaterally decide to pay straight time, half-time, one-third-time, or any other chosen increment.
Again, it appears that the DOL waived the liquidated damages.
Is it worth it to pursue small wage violation claims?
Best FLSA Lawyer Answer: Hell yes! Look at this case. Take $867,000 and split that among 910 employees on average over two years, and it breaks down to each employee being cheated out of about $8.51 per week or $17.00 a pay period. That the horribly devious nature of this wage theft – when such small amounts of wages are stolen per employee, the employer banks on the assumption that most employees will think it is not worth it to say much less do anything about it. But don’t worry, employers cannot retaliate against employees that complain about FLSA wage violations no matter how big or small. (Best Law Read: Am I Protected After Reporting Wage Theft Under The FLSA?). And our wage and hour attorneys are always here to protect you – with no money ever coming out of your pocket.
How to I get legal help when my job has stolen my tips?
Best Tipped Employee Rights Lawyer Answer: Whether you are a bartender, server, waiter, waitress, valet, or any other kind of tipped employees, you deserve to be paid in full for the work that you do. If your employer is stealing your tips or not paying you overtime at time and a half, it is violating the Federal Fair Labor Standards Act (FLSA) or Ohio Fair Labor Standards Act. You should immediately contact the experienced wage attorneys at Spitz, The Employee’s Law Firm today. Our FLSA attorneys will provide you with a completely free and confidential initial consultation. (Read: What is the Spitz No Fee Guarantee?). The wage and hour lawyers at Spitz will provide you with the best options for your overtime, minimum wage and other pay dispute situations. If you even think you may be entitled to overtime pay that you are not being paid, it is best to call our top wage lawyers now.
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 a bar manager keep part of my tips?”, “Does the restaurant that I work for have to pay me time and half for overtime?”, “can I sue if my paycheck short?” or “What should I do if I’m forced to tip out to managers and cooks?”, then 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 The Spitz Law Firm, Brian Spitz, or any individual attorney.