Restaurant wait staff and other tipped employees have unique wage and hour issues per the tip pooling laws that apply to their pay. They are usually paid minimally by their employer and are expected to make up the deficit with earned tips from customers. As a tipped employee, it’s important for you to understand your rights and know you are entitled to receive at least the standard minimum wage for your work.

As defined by the Fair Labor Standards Act (FLSA), a business owner is violating the law by not providing you a legal wage or by demanding a cut of your tips. The Feldman Legal Group can help you obtain back pay for wages you have been denied and assist with other employment law issues. An experienced labor law attorney can be reached today: contact us for a free assessment of your case.

Restaurant server impacted by tip pooling laws.

Laws for Tipped Florida Employees

Although individual states can alter some FLSA laws, Florida sticks closely to these federal laws pertaining to tipped employees. Since Florida’s minimum wage is higher than the federal minimum, the higher Florida wage applies to all employees, including tipped employees.

A waiter or waitress in Florida should receive a base pay of $5.23 per hour, and if your tips don’t raise you to the state’s minimum wage, $8.25 per hour, your employer must make up the difference in your paycheck.  Tipped employees who work overtime hours should receive 1.5 times their regular hourly wage for these hours.

The following rules apply to Florida business owners who employ workers earning at least $30 a month in tips:

An employer must pay the legal minimum and overtime wage for tipped employees regardless of how much excess the worker earns from tips.

For example, as a server in a high-end restaurant, you might bring in hundreds of dollars in tips on each shift, earning well over minimum wage.  Regardless of the amount of tips earned, you are still owed hourly pay.

An employer cannot lay claim to an employee’s tip money for any reason.

You are the owner of your tips. The employer is allowed to count tips and apply “tip credit” to offset the minimum wage obligation, but cannot skim any money “for the house” from your tips. In Florida, since you must receive $8.25 per hour, the tip credit cannot exceed $3.02 per hour. This is the difference between the “tipped minimum wage” ($5.23) and the normal Florida minimum wage.

Only tips an employee actually receives can be counted toward the employer’s tip credit.

An employee’s tip credit must never exceed the actual amount the employee takes home in tips. For example, an employer cannot average your weekly tips when determining the amount of your paycheck. If there is a tip pool, your actual take from the shared tips is the amount applied to your tip credit.

A “tip pool” or other tip-sharing arrangement is allowed — on a limited basis.

It is legal for the employer to require you to contribute all of your tips to the pool, with no maximum (or minimum) limits. However, your employer cannot make you share tips with workers who wouldn’t ordinarily receive tips, such as a cook or dishwasher. A restaurant shared tip pool would normally include wait staff, table bussers, counter workers, and bartenders.

If the employer assesses a “service charge” for customers, this charge does not count as a tip.

Some restaurants charge large parties an automatic 18% “gratuity,” but this required payment does not constitute a tip for good service.  The employer may pass some or all of this gratuity to the service staff, but the money does not legally count as tip credit.

Credit card tips must be timely paid.

An employer cannot withhold credit card tips until the money is received from the credit card company. You must be paid for these tips on your regular payday. Because the restaurant must pay a percentage of the sale in credit card charges, they have the right to reduce your charged tips by this same percentage.

Employers Are Required to Notify Tipped Employees

Your employer must provide you with written or oral notice about many of the above regulations.  You must be informed as to your status as a tipped worker, your hourly wage, and the amount that will be claimed as your tip credit. If an employer does not provide you with official notice, the business cannot use the tip credit allowance and must pay you the full, regular minimum wage. All tips received would be in addition to this wage.

If you share tips and there is a tip pool in place, your employer must notify you ahead of time about required contributions.

Do You Share Tips? Talk to Feldman Legal Group

Whether you have shared tips or not, if you are a tipped employee and have concerns about unlawful actions of your employer, we can help. If your employer is violating laws pertaining to your tips and minimum hourly wage, please contact Feldman Legal Group today. Our employment law attorneys have years of experience helping Florida and Georgia employees collect back pay and protect their legal employment rights.