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Are you a server or bartender? You are entitled to certain federal and state laws. These laws are designed to help you! In 1938 the Fair Labor Standards Act (FLSA) was passed. This helps ensure that workers are given fair rights as employees. Requires employers to pay covered employees at least the federal minimum wage and overtime pay of one-and-one-half-times the regular rate of pay.

 

What Is a "Tip Credit"?

 

Section 3(m) of the FLSA permits an employer to take a tip credit toward its minimum wage obligation for tipped employees equal to the difference between the required cash wage.

 

employment-attorney-orlandoIf you are a tipped employee working under a "tip credit", your employer may not be paying you all the money that you deserve! If you are working under a tip credit, you must know the following:

  •  Amount of tip credit cannot exceed actual tips received

  •  Your employer must explain tip credit system to you

  •  Your employer cannot force you to tip out to non-tipped employees (management, cooks, cleaning crew, etc.)

  •  You are owed a full minimum wage for all shifts where sidework exceeded 20% of your shift time!

 

Know your rights as a server or bartender! You may be able to recover two times the amount of money owed to you. The statute of limitations allows this to apply to any job you have had within the last five years!

 

Contact an experienced attorney at Cohen Law Group to schedule a free and confidential legal consultation regarding your rights as a server or bartender.  Call us today.

 

FAQ's

What is considered side work?

“Side work” is work that is related to the job of being a server/bartender, however does not produce tips from a specific table.  These are general tasks, such as brewing tea, brewing coffee, rolling silverware, sweeping up, putting bread in the warmer, replacing sweetener caddies, filling/marrying ketchup/condiments, wiping down counters, etc.  Simply put, if it’s not greeting your customer, taking your customer’s order, bringing your customer their food/accessories, or cashing out your table, it is probably side work. 

Should I be required to clock out of work and be required to continue cleaning or closing?

Your employer may not make you work, in any way, off the clock.  In some cases, they may even be required to pay you for NOT working.  For example, if a restaurant/bar gets slow, and your employer says, “hey, clock out and sit at a booth until it gets busy again (but you can’t leave), then clock back in once it gets busy”, they owe you a wage for that time.  An employer may NOT make you clock out before performing closing or cleaning dutues. 

  

Is my claim a class action law suite?

In almost every case, no.  Your claim is only for your claim, no one elses.  That way our firm can not only give you the attention you deserves and fight to get you every penny you are owed, but we can move your claim through the legal process much, much faster than a class action.  Also, you will have complete control over your claim and the decision to fight or settle your case. 

What is server minimum wage?

Florida allows tipped employees to be paid $3.02 less than the applicable minimum wage by using your tips as a “credit” toward your wage. 

Why should I be paid regular minimum wage during opening and closing duties?

The Department of Labor, in enforcing the Fair Labor Standards Act, has stated that non-tipped, incidental labor (“side work”) may not exceed 20% of your total shift time at a “server wage”.  In other words, if “side work” exceeds 20% of your shift time, your employer must pay you full minimum wage for that time.  If you are required to perform any duties that are generally unrelated to the job of a server/bartender (such as cooking, washing dishes, deep cleaning the restaurant, cleaning bathrooms, etc.), you are entitled to receive a full minimum wage regardless of whether that work exceeds 20% of your shift. 

What is an illegal tip pool?

An illegal tip pool is when a tipped employee is required to “tip out” some of their tips to a person that is not customarily engaged in a tipped occupation.  This includes back-of-the-house staff (kitchen staff), management, the company itself, and in some cases, hosts/hostesses and expo.  If you are forced to contribute to an illegal tip pool, you are entitled to be paid FULL MINIMUM WAGE for EVERY SHIFT where you were required to contribute to the illegal tip pool, PLUS return of the money you tipped out during these shifts. 

Is my manager allowed to take my tips?

In almost every situation, absolutely not.  There are a couple exceptions to this rule.  For example, if your table included an auto-gratuity (usually due to it being a larger party), this may be withheld/kept by management.  To know if your employer/manager was legally permitted to take your tips, speak with an attorney regarding your specific situation. 

How much will the lawyer take out of my settlement?

If you are forced to file a suit in order to recover the wages that are owed to you, Florida law allows you to recover the amount you are owed, PLUS liquidated damages equal to the amount you are owed, PLUS YOUR ATTORNEY EXPENSES!  Although different attorneys may make different agreements, at Cohen Law Group in almost every case our firm will not take a penny of the wages and liquidated damages you recover.  We demand that your employer pay you the wages you’re owed, plus your liquidated damages, plus all money owed to our firm for representing your case.   

What if I don’t have my pay stubs?

Although helpful, it is not necessary for you to have your pay stubs.  Your employer is required by Federal law to save all your pay stubs and time records. 

Am I allowed to be paid a flat amount and be expected to make up the rest of the money by tips?

Only if that “flat amount” does not break down to less than $3.02 under minimum wage for all the hours you work.

Is a employer allowed to automatically deduct time from my pay for breaks even if I didn’t take a break?

Absolutely not. 

My employer requires me to be at work by a certain time but does not allow me to clock in. is this legal?

No.  If you are required to be at work at a particular time, and you arrive at that time, you must be paid for that time. 

What if with my tips included I make less than minimum wage?

Your employer is required to pay you the difference. 

What if I cant make any tips?

If your employer pays you a “server/bartender wage” of $3.02 less than the applicable minimum wage, however that wage plus tips does not total at least full minimum age, your employer is required to pay you the difference. 

Can an employer reduce my server minimum wage?

No.

If I think I have a case when should I call?

Immediately.  The sooner you contact an attorney, the sooner you can start protecting your rights. 

What if I am still employed by the employer?

It is illegal for an employer to “retaliate” against you for demanding the wages you are legally owed.  If your employer does retaliate because you demanded wages you are legally owed, you will be owed much more money.    

How do you calculate the 20%

Total hours spent performing side work per shift. 

I work for a large corporation if this is illegal then why are they doing this?

The reasons may vary.  Maybe the corporation saves more money in the big picture, even assuming there will be lawsuits.  Maybe the employer is simply ignorant of the law.  Maybe the corporation doesn’t realize it’s happening because a particular store manager is responsible for the illegal activity.  The important thing isn’t why they are doing it, it’s what you are owed for your work.

This is industry standard what changed? Why doesn’t anyone say anything?

Although the most common reason is that an employee is scared or intimidated by their current or past employer, the number of hospitality workers who are standing up for their wage rights across the country is growing.  Remember, police enforce most common criminal laws, however they do not spend their days seeking out and enforcing illegal wage practices.  The primary way wage rights are enforced, and the industry standard changes, is by hospitality workers standing up for their rights themselves. 

 

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