Recover Unpaid Wages for Restaurant Workers and Tipped Employees in Florida
Understanding Tipped Employee Wage Notices in Florida
The employer must provide the following information to a tipped employee before the employer may use the tip credit:
- the amount of cash wage the employer is paying a tipped employee, which must be at least $2.13 per hour under federal law ($5.03 under Florida law);
- the additional amount claimed by the employer as a “tip credit,” which cannot exceed $5.12 under federal law (the difference between the minimum required cash wage of $2.13 and the current federal minimum wage of $7.25) (In Florida, the employer cannot claim more than $3.02 as “tip credit). Thus, if the employee worked over 40 hours in a week, the employee is still entitled to overtime, but the employer is still limited as to the amount of tip credit that they can take.
- the tip credit claimed by the employer cannot exceed the amount of tips actually received by the tipped employee;
- all tips received by the tipped employee are to be retained by the employee except for a valid tip pooling arrangement limited to employees who customarily and regularly receive tips; and
- that the tip credit will not apply to any tipped employee unless the employee has been informed of these tip credit provisions.
The employer may provide oral or written notice to its tipped employees informing them of items 1 – 5 above. An employer who fails to provide the required information cannot use the tip credit provisions and, therefore, must pay the tipped employee at least $7.25 per hour in wages (under federal law) and allow the tipped employee to keep all tips received.
Legal Boundaries of Tip Pooling in Florida's Hospitality Industry
Employers can require tipped workers to participate in a tip pool. However, the tip pool can only consist of employees who customarily and regularly receive tips such as waiters, waitresses, bussers, bartenders, and barbacks. The tip pool cannot include those who do not customarily and regularly receive tips such as dishwashers, cooks, chefs, janitors, bouncers, and managers. If non-tipped employees are included in the tip pool, this destroys the ability of the employer to take the tip credit and the employee would be entitled to the full minimum wage, and not just the tip credit.
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Common Tipped Employee Wage Violations
1) Failure to Provide Notice to the Tipped Employee
The employer must provide the following information to a tipped employee before the employer may use the tip credit:
- the amount of cash wage the employer is paying a tipped employee, which must be at least $2.13 per hour under federal law ($5.03 under Florida law);
- the additional amount claimed by the employer as a “tip credit,” which cannot exceed $5.12 under federal law (the difference between the minimum required cash wage of $2.13 and the current federal minimum wage of $7.25) (In Florida, the employer cannot claim more than $3.02 as “tip credit). Thus, if the employee worked over 40 hours in a week, the employee is still entitled to overtime, but the employer is still limited as to the amount of tip credit that they can take.
- the tip credit claimed by the employer cannot exceed the amount of tips actually received by the tipped employee;
- all tips received by the tipped employee are to be retained by the employee except for a valid tip pooling arrangement limited to employees who customarily and regularly receive tips; and
- that the tip credit will not apply to any tipped employee unless the employee has been informed of these tip credit provisions.
The employer may provide oral or written notice to its tipped employees informing them of items 1 – 5 above. An employer who fails to provide the required information cannot use the tip credit provisions and, therefore, must pay the tipped employee at least $7.25 per hour in wages (under federal law) and allow the tipped employee to keep all tips received.
2) Forced Participation in a Tip Pool that Includes Non-Tipped Workers Such as Dishwashers or Managers
Employers can require tipped workers to participate in a tip pool. However, the tip pool can only consist of employees who customarily and regularly receive tips such as waiters, waitresses, bussers, bartenders, and barbacks. The tip pool cannot include those who do not customarily and regularly receive tips such as dishwashers, cooks, chefs, janitors, bouncers, and managers. If non-tipped employees are included in the tip pool, this destroys the ability of the employer to take the tip credit and the employee would be entitled to the full minimum wage, and not just the tip credit.