Server Minimum Wage

September 15th, 2006 Posted by Nicole

Since 1933, the U.S. has observed very strict minimum wage laws. Over the years, there have been many changes to these laws, including the dissolution of the minimum wage, the reinstatement of the wage and many increases in the wage. Most recently, the federal government handed over power to the states to determine what the individual state minimum wages are. Each state may select to increase the minimum wage above the national wage, which is $5.15, but it may not decrease the way below the national standard.

While the minimum wage is set at $5.15, it is recognized that the server minimum wage is not exactly that high…on paper. When it comes to the server minimum wage, each state has its own wage set. That wage is generally just over $2.00, but rarely much more. This minimum wage serves as a very base salary for servers who are on the clock serving tables. If a server needs to come in during a time when he or she is not serving, then the server must be paid at least the base minimum wage for the state and locality. For example, if a server needs to come into a restaurant for a cleaning day, then the server needs to make more than he or she would normally make for base pay.

The reason that the server minimum wage is so low is simple: servers make tips. At the end of each shift, servers are required to report how much money they earned during the course of their shift. That amount must equal or exceed the minimum wage. Thus, the server minimum wage is a base rate, but the server generally makes much more than the minimum wage.

It is important to note that servers must report the full amount of their tips. Often, when tips are factored into the equation, the server minimum wage becomes a secondary source of income, as the tips tend to exceed the minimum wage by a great deal.

Last 10 posts by Nicole

64 Comments >> Posted in Federal Minimum Wage

  1. Posted by: Evelyn

    Can my employer at the restaurant force us to sweep and mop floors, do all the dishes, clean the kitchen and various other tasks after we have been
    “cut” (not serving any more or waiting on tables) before we can go home. Sometimes this takes up to 2 hours. If we don’t do these tasks, they say we are fired. This seems wrong to me.

    Server at a restaurant in Beckley, WV

  2. Posted by: Nicole

    Hi Evelyn! That’s a complex question. For a complete answer, please post it on our sister site at http://www.laborlawtalk.com. And thanks for reading the blogs!~ Nicole

  3. Posted by: tabatha

    I got one for you, what about when you work your butt off for $2.13 an hour and your check is only $50.00 a week if you worked 40 hours and you cant even cash it, not at the bank its from, or any check cashing in your town. Or what if the restaurant you work at is one of the biggest franchises internationally and you live off your tips. But this restaurant never has everything on the menu, and especially runs out of the basics everyday, so why then is it fair to get minimum wage when that in effect is what you will make as soon as you tell a customer I’m sorry we don’t have that, and this happens everyday

  4. Posted by: Amelia

    Hi Tabatha! This is a tough situation. If the employer is issuing paychecks that are worthless, then under the law the employees are not being paid. You should contact the Wage and Hour Division of the U.S. Department of Labor, and the state department of labor, because you are not being paid the minimum wage for servers.

    Franchises are locally owned and unfortunately there is a bad apple in every bunch. It sounds like the restaurant where you work is poorly managed, which obviously affects your tips. You would certainly be justified in looking for another job. Even in a tough economy, it should not be hard to find one where you are at least paid the server’s minimum wage. For a more complete answer, please post your question on our sister site at http://www.laborlawtalk.com. HTH, and thanks for reading the blogs!~ Nicole

  5. Posted by: Barry Reed

    I’ve just started working for a new employer whose business hasn’t taken off as he expected it to quite yet. The first week I worked after opening I worked 36 hours and only made $60 in tips. Does my employer have to make up the difference between $2.13/hour and minimum wage now which is $6.55?

  6. Posted by: Amelia

    Hi Barry! Yes, the employer has to pay you — and every server — the difference between the tips you actually earned, and the federal minimum wage of $6.55 per hour.

    And, if the employer doesn’t make good on this ASAP, you should look for another job. You can also post questions on our sister site at http://www.laborlawtalk.com. HTH, and thanks for reading the blog!~ Amelia

  7. Posted by: laurel

    Hi!

    I have been waiting tables for 12 years now and I’m just wondering how “fair” it is that the server min. wage has not been increased in a REALLY long time. With the economy tanking, I’ve been reduced to working only 4 shifts a week and quite often only make $20 – $ 45 for a 6-8 hour shift despite the fact that the restaurant I work at is considered “up-scale” and is independent. Is there ever going to be a time when the min. wage is considered for an increase? I haven’t received a paycheck in years (due to claiming all of my tips) and even though on paper I made a little over $20K this past year, owing more than a grand in taxes, while understandable, is seriously gonna kill me this year. Outside of finding another line of work, which I am trying very hard to do, is there any way I can speak up for myself and my profession?

  8. Posted by: Amelia

    Hi Laurel! We will address your quesiton, but first… we have good news for you. The federal minimum wage applies to most servers, because most restaurants accept credit cards. The federal minimum wage is currently $6.55 per hour, and on July 1, 2009 it will increase to $7.25 per hour.
    Under federal law, a tipped employee can be paid just $2.13 per hour. However, the employee’s total wages — tips plus hourly rate — must average out to be at least the minimum wage for hours worked during the pay period. If it does not, the employer must make up the difference in wages.
    Suppose Amy works four 6-hour shifts this week and makes just $20 in tips on each shift. Amy is averaging $3.33 per hour in tips. She is also earning $2.13 per hour in wages, so Amy’s total hourly rate is ($3.33 + $2.13) or $5.46 per hour. That is less than the federal minimum wage of $6.55 per hour, so Amy’s employer must pay her an additional $1.09 per hour in wages on her paycheck.
    Servers should keep an accurate written record of tips received on each shift. Usually, this information is on the time card. It is the employer’s responsibility, then, to ensure that they are paying any difference between the employees earnings and the minimum wage.
    We will also add that if a tipped employee is regularly making less than the minimum wage, they would literally be better off working at the local McDonald’s. Many fast food restaurants offer flexible schedules, opportunities for promotion and healthcare benefits even to part-time workers.
    In your case, the problem is worse because you are basically working part-time at just 28 hours per week. It would be better for you to either look for a full-time job, or to find an additional part-time job, to at least get up to 40 hours per week.
    Many food servers would agree with you that the tipped minimum wage needs to increase. The only way to do that is to contact your state or federal representative in the legislature. It is worth noting that in almost half the states, under the state minimum wage tipped workers must be paid more than $2.13 per hour. In fact, at least 6 states require that tipped workers be paid the full state minimum wage. For example, in Washington state, tipped employees must be paid $8.55 per hour. HTH, and thanks for reading the blogs!~ Amelia

  9. Posted by: Leslie Mandic

    Amelia I would love to know how to find which states pay what.
    My son works in Ky and makes 2.13/hr. I know AZ & AL also pay that. When I tell my friends they are horrified as min. wage is min wage right? with the exception of the food industries dirty little secrets. Calif has had REAL min wage for food servers for I want to say 30 years now as *Tips Are Not Guaranteed* I remember that petition. I know my son called recently before Christmas as he had a really bad night and worked 6hrs and barely made I think it was $20 in tips. I told him they had to make it up. He said no it was in a pay period average. Which again is fairly s**ty if you ask me. My son is a good waiter has been in food service for 8 years since he was 14 working at a Subway. Plus he had an embarrassing mum who was a perfectionist customer, which I think geared him straight. LOL!
    He also worked at 17 as a busboy in famous hotel for breakfast. There the busboys made $6 an hour because they don’t typically get tips and do the floor mopping etc. The (exclusively female) servers were supposed to give him 10% of their tips. Which did or didn’t happen. So he really made about $9 an hour before taxes. Now he knows how to *grease* his busboys. Clean tables of course generate more customers. Even though Good nights generate him better than $10 an hour and he pays taxes to the employer, I think its crappy to not pay real min wage. ya’ll need to start a movement.
    SO I pay cash for tips when I can. If I am short I put a bit on my credit card and the rest cash. I know one is supposed to report all to the IRS of course but I think 50% in cash is the actual amount from most servers. Nowdays most don’t know all of this and tip on the card but I try to enlighten my friends and wish you all well.

    –leslie

  10. Posted by: Amelia

    Hi Leslie! The federal minimum wage for tipped employees is $2.13 per hour. That rate also applies in Alabama, where there is no state minimum wage whatsoever. It’s also $2.13 per hour in Kentucky. The minimum wage for tipped workers in Arizona is $4.09 per hour. In all of these states, if the employee does not average the minimum wage ($7.25 in Arizona, $6.55 in the other states mentioned) the employer must pay the difference in wages.
    Seven U.S. states require that tipped employees be paid the full minimum wage: Alaska, California, Minnesota, Montana, Nevada, Oregon and Washington. The minimum wage for tipped workers is highest in Washington, at $8.55 per hour. (Hawaii permits tipped workers to be paid just 25 cents less per hour than other workers.)
    Under federal law, even if all tips are in cash, the IRS assumes that employees make at least $8 in tips for every $100 of food and beverages sold. That’s the rate that the IRS requires employers to withhold at. In addition, tipped employees must claim enough tips to get up to the minimum wage, and pay taxes on them. So the days when much of a tipped worker’s income was tax free are gone. HTH, and thanks for reading the blogs!~ Amelia

  11. Posted by: Leslie Mandic

    Thanks Amelia!

    BTW where do you find your source for each state? The server wage, I have had trouble finding it.

    –leslie

  12. Posted by: Amelia

    Hi Leslie! In order to find the tipped minimum wage for each state, you pretty much have to contact each state department of labor. You can also search our archives for “Arizona minimum wage” or whatever state you are interested in. We post articles each time a state or federal minimum wage changes. Those articles normally include the tipped minimum wage. HTH!~ Amelia

  13. Posted by: Elizabeth

    I am a server at just above the $2.33 wage in Wisconsin. The restaurant I work at has decided to close the kitchen at 10 pm but keep the bar section open until 2:30 am. I am required to work alone from 11-3 at the same wage. Shouldn’t I get a bartenders wage instead of a server wage once the kitchen closes and what if I don’t feel safe alone when the kitchen staff leave.

  14. Posted by: Amelia

    Hi Elizabeth! Yes, it would be the right thing for the emplloyer to pay you bartender’s wages from 11 to 3 each day. However, from a legal standpoint, as long as you are averaging at least the state minimum wage (including tips) for all hours worked, this is probably legal. We are more concerned about the safety issue. If you do not feel safe working alone from 11 pm to 3 am, then don’t do it. No job is worth putting yourself in danger for. HTH, and thanks for reading the blog!~ Amelia

  15. Posted by: Heather

    Message: Hi Amelia,

    I live in Georgia and work for a restaurant that pays the standard $2.13/hour. Most of the time this is fine, but the month of June is very slow. I worked this past Saturday night for six hours and made $5.00 in tips, then worked five hours the next day and made $13.00 in tips. The average for these two days is somewhere around $3.77/hour (including the $2.13 hourly rate). My question is does the employer have to pay the difference for every hour worked or is there a weekly average rule? I want to have my facts straight before I go asking for more money, which as slow as business is, I am sure they will be not too happy to give. Thanks for the help!

    Heather

  16. Posted by: Amelia

    Hi Heather! Tipped employees in Georgia must average $6.55 per hour worked over the payroll period when tips and wages are added together. If you work 30 hours this week, you should be paid $196.50 including tips before taxes. Most restaurants have a system in place to handle this. If not, tactfully mention to your supervisor that you will be owed additional wages this week. HTH, and thanks for reading the blogs!~ Amelia

  17. Posted by: joy

    I am 8 months pregnant and worked in a small diner until recently. My boss, who is also the owner, informed me that he would be keeping all of my tips and pay me $8/hr, but I would be fired on the spot if I told any customer. Being 8 months pregnant with regular customers, I was starting to receive monetary gifts in my tips, and he kept those as well. I told him I felt it was dishonest. I only lasted 3 days before the stress of the situation got to me. If I never filled out a new w4 (contract), does he still owe me my tips and $4.19/ hr, or can he get away with stealing from my baby?

  18. Posted by: Amelia

    Hi Joy! A W-4 is not a contract, and an employer need not have a worker fill out a new W-4 when she receives a raise.
    What your boss did may be illegal under federal law. The federal FLSA or Fair Labor Standards Act requires that employees be permitted to keep all tips. You should file a wage claim with the US Department of Labor for your tips.
    There may be a loophole here because your boss gave you an increase and was not paying you $4.19 per hour. Your boss offered you a new arrangement: you would earn $8 per hour but receive no tips. When you began working under this arrangement, you accepted the new wage. (The alternative was quitting.) But if you file a wage claim with the US or State department of Labor, they will be able to sort this out.
    We will add that this restaurant owner is a real jerk, and you SHOULD tell the customers that he kept all of the tips they gave you — even if you have to make a special trip to the restaurant to do so. HTH, and thanks for reading the blogs!~ Amelia

  19. Posted by: Tristan

    Hi, I am a server in Kentucky and my boss makes us claim our cash and credit card tips at the end of the night. At the restaurant I worked at previously we used the same kind of system and when we edited our credit tips it was automatically claimed, so at the end of the night when you claimed you only had to put in your cash tips. My question is, is my current boss making us over claim? Also often he will make us claim more cash if he thinks we made more than we claimed, based on our sales, is that legal?

  20. Posted by: Amelia

    Hi Tristan! That’s not only legal, your boss is required by law to do so.
    Federal law and IRS regulations require that servers claim every penny in tips that they make.
    Different restaurants have different payroll systems. Some will automatically add credit card tips to an employee’s declared tips, others will not. Either way, under federal law, the employee must declare all tips. An employer who collaborates with the employer to under-report tips is conspiring to commit tax fraud.
    If you fear your credit card tips are being reported twice, keep an accurate written record of your cash and credit tips for one payroll period. The total amount of declared tips should apprear on your check stub. If it is significantly more than your written total, then you are right. (Under federal law, you should be keeping written records of all tips anyway.)
    The IRS generally assumes that servers in full-service restaurants net tips equal to 8% of the servers total food and beverage sales. The IRS requires the employer to withhold taxes on this amount or on the employee’s actual declared tips, whichever is greater. At the end of the year, if your written tip records show that your actual tips were lower than 8%, you may be entitled to a tax refund.
    If at any point your actual tips plus hourly wages over the payroll period average less than the state minimum wage of $7.25 per hour, the employer must pay you the difference in wages. Which is another reason that he has a vested interest in making sure you declare every penny in tips. HTH, and thanks for reading the blogs!~ Amelia

  21. Posted by: Christo

    Hello… just looking for clarification to ease my mind and know what course of action I should take.

    I started a new job Aug 19 as a server at a new restaurant in Missouri. Our POS was not up and running until Aug 27 which meant the time we spent training & preparing the restaurant for its opening had to be manually recorded.

    I was informed that the compensation for the training period is min wage, $7.25/hr.

    Labor Day weekend was intense while we were understaffed and still a bit disorganized. Being only my second serving position and having only a few months experience, my supervisor informed me that I would be starting a two week retraining(following a server). I started my retraining Sep 8 and on Sep 14 I was informed that the powers that be felt that no matter how much ‘training’ (following) I have I will not reach their standards. No, I’m not THAT bad… not at all actually. I treat everyone I serve like a guest and everyone I work with, with respect.

    Aside from feeling patronized & degraded, I finally received my first and only check yesterday Sep 23 (dated Sep 18) and noticed that I was paid incorrectly.

    Pay frequency is bi-weekly and my check shows the pay period as 8/31 – 9/13.

    Tipped wages in Missouri is $3.63/hr. It looks like they calculated more tipped wage hours and less training hours. On top of this, the pay rate for my training hours was $5/hr.

    I tried to do some research since the laws seem kinda vague and confusing. I contacted the Department of Labor – Division of Labor Standards this morning but I didn’t I verbalized my questions and concerns the way I wanted to. So here I am…

    Don’t worry… I’m getting to my questions..

    Can my employer combine 2 pay periods into one?

    If they can, can they use earned/declared tips against all hours worked?

    Meaning, If I worked a grand total of 96 hours over the course of 2 pay periods combined onto one check as one pay period:
    70 hours as tipped wage hours ($3.63/hr)
    and the balance of 26 training hours($5),
    can they say that the tips I make count towards making min wage so that they don’t have to pay the difference? (I hope I’m making sense).

    Simply put… if they say they will be paying me $7.25 for training and I work 26 hours “training” with NO sales under my employee # … am I not entitled to 26hrs x $7.25/hr?

    Can they back down from their word or am I protected by any laws?

    I keep meticulous records and have my daily Check/Clock Out sheets which show Time In, Time Out, Shift hours worked, cumulative hours worked for the week, Sales and Tips declared. If need be, can I use these to plead my case?

    Your help and insight in greatly appreciated and I’m glad there is such a site to voice concerns. THANK YOU.

  22. Posted by: Amelia

    Hi Christo! As much as we would like to help you, this may have partially been a miscommunication. We suspect that when the employer said you would be paid minimum wage for training, they meant training prior to the restaurant opening. Once the restaurant opened and actually started serving food, servers would be earning tips and paid the tipped wage. This is standard procedure in opening new restaurants.
    You are entitled to payment for every hour worked, even while the POS system was not in place. The employer is responsible for keeping accurate payroll records.
    If the employer specifically told you that you would be paid $7.25 per hour plus tips while you “followed” another server around for additional training, you may have a case. But we suspect that they were trying to say, that you would earn the minimum wage of $7.25 with tips and wages combined — which is the law.
    It’s important to understand the difference between a payroll WEEK and a pay PERIOD. Every employer must establish a payroll week, and it cannot fluctuate. In this case, it appears that the payroll week runs from Monday to Sunday. So Mon. 8/31 to Sun. 9/6 was one payroll week, and Mon. 9/7 to Sun. 9/13 was a second payroll week. Those two payroll weeks combined are one pay period. This is perfectly lawful.
    Under the Missouri minimum wage law, you are entitled to the minimum wage for each hour worked during the payroll WEEK, when tips and wages are added together. The employer cannot average your tips over the two payroll weeks (or two payroll periods) to determine if you earned at least the minimum wage.
    The employer figures your time for the WEEK at $3.63 per hour — the tipped minimum wage in Missouri. Then they add in any tips you earned during this time. (It doesn’t matter whether food was rung up under your I.D. number or not — any tips you earned must be reported and added in.) If that does not bring your total up to the minimum wage of $7.25 per hour, then the employer increases your wage until you reach that level. That is probably what the $5 per hour is — the employer is paying you additional monies so that you come up to the minimum wage.
    However, the employer cannot average your tips over the payroll PERIOD to determine if you are earning the minimum wage or not. It must be averaged over the payroll week.
    To answer your question, no, you probably are not entitled to 26 hrs x $7.25 per hour. For the payroll weeks of 8/31 to 9/6 and 9/7 to 9/13, you are probably entitled to (total hours worked in that payroll week) x $7.25 per hour minus all tips earned during that payroll week.
    For the payroll week of 8/24 to 8/30, it sounds as if you made little or no tips. If you earned no tips at all in that period, you would be entitled to $7.25 per hour for the hours you actually worked in that payroll week.
    It’s great that you have kept accurate records! Our suggestion is that you sit down and figure out what you should have been paid for each payroll week. Then, contact the Missouri Division of Labor Standards and file a wage complaint for any week in which you did not earn at least $7.25 per hour. HTH, and thanks for reading the blogs!~ Amelia

    Read more about this at: http://www.sos.mo.gov/adrules/csr/current/8csr/8c30-4.pdf

  23. Posted by: Anthony

    I am a server in New Jersey. Recently, we were told our owners were taking 20 cents out of every hour working from our paychecks to make up for the cost of any free incentives we incur (such as beverages, staff meals….). We make $2.13/hr plus tips. By doing this, if they were to take 20 cents out of every hour, wouldn’t we really be making $1.93/hr? And by law, that is below minimum wage. Should they not raise our min. wage to $2.33 to compensate?

  24. Posted by: Amelia

    Hi Anthony! This deduction is not lawful. New Jersey sets severe limits on the payroll deductions an employer can make. Even if the employer increased your wages to $2.33 per hour, such a deduction would be unlawful. Your best bet is to wait several pay periods (until the amount owed reaches $10 or $20), and save your paycheck stubs. Then file a wage claim with the New Jersey Department of Labor and Workforce Development. HTH, and thanks for reading the blog!~ Amelia

    Read more about this at: http://lwd.dol.state.nj.us/labor/wagehour/content/wage_and_hour_compliance_faqs.html#q33

  25. Posted by: Lesha

    I am a server in Texas making 2.13/hr. Are employers required to pay minimum wage per shift or is it an average over the entire pay period? I asked my employer about minimum wage if we are not receiving tables and his reply was” there are many loopholes to that law and I will take advantage of them” How, on my end, do I need to ensure I am not being taken advantrage of?

  26. Posted by: Lesha

    I meant to include this also…Is it legal for an employer to force us to pay for a ticket that has walked out without paying, or for a misring on tickets?

  27. Posted by: Amelia

    Hi Lesha! Your employers reply was rude and condescending — and inaccurate. There are not any loopholes in the law.
    Both Texas and federal minimum wage laws require that a tipped employee earn at least the minimum wage when wages and tips are added together. However, the average is over the pay period, not for a single shift. A tipped employee may earn less than the minimum wage on Tuesday night, but more than make up for it on Friday and Saturday nights.
    Both the federal and Texas minimum wages are $7.25 per hour. That means you need to average $5.12 per hour in tips (over the payroll week) to earn the minimum wage.
    Every tipped employee should keep an accurate written record of the hours worked each day, and the tips earned. Tips earned includes cash tips, as well as those left on a credit card. If you tip out busboys or bartenders, you can deduct that amount from tips earned. A small notebook or dayplanner is very useful for this.
    You should also determine what your employer’s payroll week is. Then, each week, you should total the hours worked. If your tips are less than (hours worked x $5.12 = tips) then you are entitled to additional wages. Despite your employer’s snippy answer, most payroll programs automatically add in the difference. If you find you are not earning the minimum wage, file a wage complaint with the TWC, the Texas Workforce Commission. They will investigate and collect for you.
    Your boss’s answer is not indicitive of a well-managed restaurant. When the economy is better, you would be more than justified in looking for a new job. HTH, and thanks for reading the blogs!~ Amelia

  28. Posted by: Amelia

    Hi again Lesha! This is somewhat of a gray area. Here’s the dilemma: the employer cannot legally deduct this amount from your pay, or “force” you to do anything. However, the employer can fire you for making this type of mistake, even once.
    In Texas as in many states, the employer cannot lawfully deduct the cost of such mistakes from an employee’s paycheck, without the employee’s written permission. So if you refuse to pay, the employer cannot “force” you to. However, the employer can fire you for making any one of these mistakes, which resulted in a loss of revenue for the restaurant. Many servers would pay the amount, to keep their job.
    In many cases, an employee who refused to pay a ticket when the customer “walked” and was fired, would qualify for unemployment benefits. That is because whether or not the customer pays, is probably outside of the server’s control. However, an employee who was fired for making mistakes like ringing the wrong price on a check, would likely not qualify for unemployment benefits. HTH, and thanks for reading the blogs!~ Amelia

  29. Posted by: Bridget

    Recently management in the restaurant I work at wants to start charging servers for errors. I was told that it is illegal for a restaurant in Wisconsin to charge a server for mistakes that are made with food, such as something being put in to the kitchen wrong, dropping food, etc. I have been trying to find information on this and haven’t had any luck so I was wondering if you knew if this was illegal or not because I want to make sure things are done properly at the place I work at.

  30. Posted by: Amelia

    Hi Bridget! You are right. Under Wisconsin law, the employer cannot make a deduction to an employee’s wages for loss, damage or faulty workmanship. The info is at the link below. This means the employer can discipline or terminate an employee who makes frequent mistakes, but cannot deduct the cost from the employee’s paycheck.
    If the employer demands that you pay for the mistakes in cash, you can simply decline. HTH, and thanks for reading the blogs!~ Amelia
    Read more about this at: http://www.dwd.state.wi.us/dwd/publications/erd/pdf/ls_45_p.pdf

  31. Posted by: tabitha

    I have been working at [employer name deleted] as a sever for 3yrs now. When I started I was making $3.13 an hr. Before my first yr was up I moved to another location within the same company, pay stayed the same, I moved once again, last yr, within the same company only this time I was dropped down to $2.13 an hr. I have asked if I can get that back and was told that I had to go to corp. and they might be able to fix it and back pay me from the time that I was dropped that $1, Is this true? Should I go to corp.?

  32. Posted by: Amelia

    Hi tabitha! It won’t hurt to tactfully ask corporate about this, but we would not be surprised if your request to be reinstated to $3.13 per hour is denied. You say that you were moved to another location, but you always have a choice whether to accept the new position, or to quit. In this case, it appears that you accepted a new position at a lower rate. So give it your best shot, but don’t hold your breath. HTH, and thanks for reading the blogs!~ Amelia

  33. Posted by: tabitha

    Well see thats the thing they didn’t move me I asked to be moved by choice b/c I moved to a new house. As for accepting a lower rate I wasn’t told that I was gonna loose that dollar I asked and was told that it would stay the same. The manager that did this is no longer working for the company as they lost their postion for reason that I will not state.

  34. Posted by: Amelia

    Hi tabitha! Okay, that makes sense. For the first payperiod that you were employed at the new location, the company should have paid you at the higher rate. Unfortunately, when you continued to work at the lower rate, from a legal perspective, you accepted that rate. You can certainly try to get the company to pay you the difference, and that would be the most ethical thing for them to do. But from a legal standpoint, they probably don’t have to do so.
    You can file a wage complaint with your state department of labor. HTH, and thanks for reading the blogs!~ Amelia

  35. Posted by: tabitha

    I have been trying to get it fixed since it was changed but keep getting the run-around. What can I do now?

  36. Posted by: Amelia

    Hi tabitha! Probably not a lot. There is no law that the new location has to pay you the same hourly rate as the old location did. Again, if you believed you were being paid a certain rate for the first payperiod, you can file a wage complaint with your state department of labor for that pay period.
    For subsequent payroll periods, you really cannot argue that you were unaware of the hourly rate. It was on your first paycheck. You can contact HR or your old supervisor and ask them to return you to the higher rate, but they are not obligated to do so. Unfortunately, you are probably stuck with the lower rate. HTH, and thanks for reading the blogs!~ Amelia

  37. Posted by: Justin

    Hello,

    I am a server in New Jersey at an international chain restaurant. When my general manager runs my check-out, I must immediately claim my tips. The general manager, however, takes the check-out before I can see it and claims my tips, stating that we are not claiming enough. I always claim my tips and find what he is doing to be unlawful. I would just like to verify this and see if there is anything online stating this law.

    Thank you!

  38. Posted by: Jessica

    Message
    I work at a restaurant that shortstaffs to meet labor requirements. On the shifts I work, we have no hostess or dishwasher. We also have a drive-thru window that is operated by servers, usually me. Therefore, on my shifts, I have to run the drive-thru, seat the door, take to-go orders by phone and in person, wash my own cups and silverware, and many other “hourly” duties. Sometimes it can be very hard to keep up with all of this in addition to my tables. So I get frustrated when I give less than satisfactory service because of all the other things on my plate. Is it completely legal for this restaurant to have servers doing all of these “hourly” duties while trying to make tips to supplement our server minimum wage??

  39. Posted by: Amelia

    Hi Justin! This is a deceptively complex issue. Both you and the manager have a valid point. Under the law, a server must claim every penny he or she makes, cash as well as credit cards, as tips. Traditionally, many servers have tried to understate their tips to avoid paying tax on them. Therefore, the IRS requires that employers report tips of 8% of the server’s sales for the day. This means if you sell $100 in food and liquor, the IRS assumes that you made $8 in tips, and taxes you accordingly. The restaurant is basically forced to report at least this much in tips.

    Also, servers must earn the minimum wage for hours worked over the payroll period. If tips plus hourly pay do not add up to the minimum wage, the employer must pay the difference as wages. So the general manager has a vested interest in making sure you report at least that amount. Many managers would assume that an employee who earned less tips than this was not doing a very good job, and would fire that person.

    However, if the GM is truly reporting more tips then you earn, he is breaking the law by falsiflying payroll documents and violating the minimum wage law. If this is the case, you should try calmly discussing it with him, preferably not at the end of a shift. If that has no effect, you can try changing the amount of tips before signing. Because this is a national restaurant chain, you can try contacting the HR department. Or, you can try reporting him to the state department of labor.

    On the other hand, if the problem is that you feel you have an inalienable right to not report all the cash tips you earn, you are mistaken. HTH, and thanks for reading the blogs!~ Amelia

  40. Posted by: Amelia

    Hi Jessica! Yes, it is fairly common for restaurant employers to eliminate the hostess and dishwasher during slow times. If the employer continued to schedule a full staff, the restaurant would quickly go out of business. There are few limits on the types of work that a food server can be required to so. After all, you are an hourly worker. However, in many restaurants the manager would pick up a lot of the slack in this situation.

    One solution would be for you to devote your attention to your tables first, and then handle other duties as you have time. If customers complain that they have to wait to be seated or to place a drive-thru order, you can gently let the boss know that you were waiting on another customer.

    If your hourly wages plus tips do not average the minimum wage for hour worked over the payroll week, then the restaurant owner must pay you more. However, there is no law that a server cannot be asked or required to fill other duties. Ordinarily we would suggest that you look for a better job, but right now that might be impractical. HTH, and thanks for reading the blogs!~ Amelia

  41. Posted by: Theresa

    Message…
    i work at a pizza resturant where i am a server. My boss has banned my husband from the store, and all he did was bring my kids in to eat dinner. I dont understand why my family cannot be in there, yet she lets her daughter run around the kitchen, and the dining area. Her sisters children run around there also. That makes it almost impossible to do my work because i am having to work around them. I was also wondering what kind of breaks a waitress should get if she is working from 4 pm to 10 pm. Another thing is, should there only be one waitress on duty when you have a buffet going on, and there are sixteen tables, all of which get filled quickly, and i dont even get a chance to breathe or go to the bathroom until we close

  42. Posted by: Amelia

    Hi Theresa! Yes, the manager can ban your family from the restaurant. Many restaurants do not allow the families of workers to come in during their shifts, or even to eat in the restaurant at all. There are a number of valid reasons. While the family is in the restaurant, the worker is distracted and may not do a good job. There is always the danger that a server will be giving away food or beverages to family members. So this is a very reasonable policy.

    When the manager allows her children to run around the kitchen, that is not a reasonable policy. Restaurant kitchens are hazardous, and there is always the danger that a child will be injured. That injury would not be covered by the restaurant’s insurance, because the child is not an employee and not supposed to be in the kitchen in the first place. However, there is no state or federal agency that is going to inspect and force the manager to exercise good judgment.

    There is no federal law that requires meal or rest breaks for workers over 16. Some states do have break laws, but you do not mention which state you arein. OSHA worker safety standards do require that employees be allowed to use the restroom when nature calls.

    There is no law regarding how large a station can be assigned to a server. Sixteen tables is an awful lot, even in a buffet situation. The only suggestions we can make are 1) Do as much prep ahead of time as possible. For example, fill an entire rack of glasses with ice before the shift, and prepare glasses full of ice and water as well. 2) Maximize every trip. Take beverage refills to one table, drop off a check to another and pick up dirty dishes from a third, all in the same trip. This is working smarter, not harder. HTH, and thanks for reading the blogs!~ Amelia

  43. Posted by: Tanya

    I serve at a corporate restaurant in Texas, and I have a side work question. I make the usual 2.13/hr when I serve. When I perform other duties I get paid various rates above minimum wage. When I open the restaurant I get paid minimum wage until opening time, at which point the computer automatically changes my rate to 2.13/hr. Recently I began closing, and it takes considerably longer to close rather than open. After closing time, when I have no tables, I am still earning 2.13/hr. Opening the restaurant takes an hour, whereas closing the restaurant can take anywhere from one to two hours, and is considerably more back-breaking work. The hiccup is that I serve in the bar with two other servers, and the closing “sidework” is to scrub the floors, however, this turns in to taking all the dishes, stocking, cleaning, and scrubbing floors. Should they be paying me minimum wage for my time spent outside of my station without tables?

    I attempted to research this, and it seems that an employer is required to pay minimum wage for duties performed outside of my section not pertaining to my duties as a server, which may include some closing duties. Although, I am doing far more than my designated closing duties clearly state. The restaurant labor guidelines also claim that servers are expected to do only 45 minutes of sidework as well. I just feel that if the guys in the kitchen are getting paid their full wage to clean up after a hard day’s work, I should receive the same compensation.

    If I do have a case, then how should I bring this to my employer, and will I need any documentation? It is a corporation, and I am not sure how to demonstrate to them that the wage change is necessary.

  44. Posted by: Amelia

    Hi Tanya! Under the federal FLSA, a server can be required to do sidework related to serving at the rate of $2.13 per hour (or the minimum wage for tipped employees in the state. Texas has one of the lowest.) However, this is usually interpreted to mean removing dirty dishes from the tables, filling ketchup bottles, salt and pepper shakers, sugar packets, etc. — not scrubbing the floors and general cleaning. There is no limit to the amount of time that the server can spend on sidework, or how back-breaking it can be. However, you are right that if you are doing the same types of work as the guys in the kitchen, you are entitled to the minimum wage.

    We suspect that the problem lies with this store manager, rather than the corporation. The company is being more than fair by paying you minimum wage until the restaurant opens. Depending upon your opening duties, they don’t really have to do this. (Nor is there a 45-minute limit to sidework under the law.) We suspect that the store manager has simply added more and more closing duties for servers over time, to save payroll in other areas. Yes, you should keep a written record of all the duties you are completing at closing, and how long it takes.

    This may also be illegal discrimination based on sex, if the servers are mostly female, the kitchen staff is mostly male, and the servers are being paid less for similar duties.

    Since you are doing much more than your designated closing duties state, you should tactfully bring this up with your manager. Let him or her know that you think what you are doing is far beyond the legal definition of sidework, and you believe you should be paid the minimum wage. Also point out that this is in violation of the company policy that servers will only spend 45 minutes on sidework. The manager will most likely deny this request.

    You should then contact the corporate HR department and let them know you believe you are entitled to minimum wage for all the time spent closing in the past two years, and why. (If there is no HR department, contact the manager’s boss or regional director.) Keep written notes of the dates and times of all conversations, and what is discussed, and remember to remain tactful and rational during these discussions.

    If they still refuse to pay you the higher wage, file a wage complaint with the TWC or Texas Workforce Commission or the federal Department of Labor at http://www.dol.gov. They will investigate and if they find you were underpaid, they will require the employer to pay you back wages for 2 to 3 years. You may also want to report this to the EEOC at http://www.eeoc.gov as illegal pay discrimination based on sex. The Ledbetter law now makes it much easier for the EEOC to file a pay discrimination suit against the employer, even years later. Do not threaten to file a complaint, just do it. HTH, and thanks for reading the blogs!~ Amelia

  45. Posted by: BB Beckman

    Could you please tell me the procedure I would need to go through to try and increase the hourly server wage to more than 2.13 an hour. South Carolina (as well as many other states) has not had an increase in over 25 years!!! I would like to change this and get the message out to ALOT of people about tipping and percentage. The restraunt I work at has 18%, 20% and 22% tips figured out and they print right on the check above the total due. 99% of the people that patron our place IGNORE it. We are a high scale restraunt and I am very offended that people take our service for granted and leave only an 8-12% tip and think they are helping us and we should feel appreciative. I have been a server for almost 20 years and I know I give great service and should recieve more. Could you give me any advice as to how I can help this situation. I undertand that most people think that servers make alot of money at the end of the shift, but they dont consider that we have to tip out all of the other non-tipped employees and that brings our tip average down even farther. Please help….

  46. Posted by: Amelia

    Hi BB! This may be an uphill battle, because to get the server wage changed in South Carolina, you would actually have to get the U.S. Congress to change the federal minimum wage law. You can start by writing your senator and representative, and becoming politically active in your community.

    Several states have minimum wages for servers that are higher than $2.13 per hour under the state minimum wage law. A handful of states actually require that severs be paid the same minimum wage as other workers. However, since South Carolina has no state minimum wage, it seems unlikely that the state would take action, so your best bet would be to try to change the federal law. HTH, and thanks for reading the blogs!~ Amelia

  47. Posted by: Jimson

    Hi, Im a server in massachusetts and I was wondering if minimum wage had to be paid per shift or per work week. Tuesdays I usually make about $150 but on wednesdays its dead and I sometimes make nothing. I was wondering if the bar owes me minimum wage pay for wednesday or does it not matter because I made enough on tuesday to make up the difference?

  48. Posted by: Amelia

    Hi Jimson! Minimum wage for servers in Massachusetts and other states is figured on the payroll week, not the day. So yes, as long as your total wages plus tips, divided by total hours worked = the full state minimum wage (or more) you are being paid appropriately. HTH, and thanks for reading the blogs!~ Amelia

  49. Posted by: rs

    Ok I have something to ask. I am a server and I make $2.13, what I would like to know is our boss makes us claim more than what we make, and does our boss have to make up the difference if we don’t make that. I was told they have to…….

  50. Posted by: Amelia

    Hi rs! Yes, under federal and state laws, a server is entitled to make at least the minimum wage when all tips and wages are added together. If the server does not, the employer must make up the difference.

    By law, the server must report every penny in tips, including cash and credit card tips. If the employee’s earnings do not average the federal or state minimum wage for hours worked over the payroll week, the employer must make up the difference.

    Example: The federal minimum wage is $7.25 per hour. Julio is paid $2.13 an hour and works 30 hours this week. He makes only $30 in tips. Julio averages $3.13 per hour in wages and tips for the 30 hours that he worked. Julio’s boss must pay him an additional $4.12 per hour, so that his earnings equal the $7.25 per hour minimum wage.

    Note that while the federal minimum wage for tipped workers is $2.13 per hour, many states require that servers be paid more per hour. Several states also have minimum wages higher than $7.25 per hour that apply to servers.

    You should keep a written record of all the tips you earn each day. A small, pocket-sized notebook or calendar is ideal for this. At the end of the payperiod, if the employer declares more tips than you actually make, or if you do not earn at least the minimum wage, you should file a wage complaint with the U.S. Department of Labor at http://www.dol.gov. They will investigate and force the employer to pay any wages you are owed. HTH, and thanks for reading the blogs!~ Amelia

  51. Posted by: michelle ward

    Hi my daugher is a new server in Wisconsin. She was told that as long as she make more than miniumum wage, the restaurant doesn not have to pay her the state minimum wage for servers. I thought this amount had to be paid in addition to any tips she received. In Illinois my daughter would always get a small paycheck representing the hours she worked at server’s minimum wage. Here in Wisconsin she has not received a paycheck since she started and she was told that is because she has consistently made more than minimum wage. Is that correct?

  52. Posted by: Amelia

    Hi michelle! This may be illegal, or it may be a miscommunication. Under Wisconsin law, servers must be paid at least $2.33 per hour, regardless of how much tips they are making. A server under the age of 20 can be paid just $2.13 per hour, for the first 90 days, assuming she earns enough tips to average the minimum wage.

    However, the employer is required by low to deduct state and federal income tax and social security from those wages, based on the employees entire earnings, including tips. (In addition, in some cases group health insurance is deducted from the paycheck.) Under federal and state law, the employer must pay your daughter on a regular basis, either every week or every two weeks. She should at least be receiving a paycheck for $0 and a check stub that shows where the money went. However, if your daughter is making good tips, it is possible that these taxes are eating up her entire check, meaning she receives nothing on her payroll check.

    But if the employer is genuinely not issuing a payroll check at all, that would be illegal. You should report it to the Wisconsin Department of Labor at http://www.dwd.state.wi.us/ HTH, and thanks for reading the blogs!~ Amelia

    Read more about this at: http://www.dol.gov/whd/state/tipped.htm

  53. Posted by: Jan

    Hi, I’m a server at a restaurant in Texas. I’ve been working for 6 months and haven’t received any check for my $2.13 an hour, and when I asked about it, I was told the owner keeps it all to pay our taxes for us every year. Is this legal? Thanks.

  54. Posted by: Amelia

    Hi Jan! No, this is not legal. Under both federal and state law, a server must be paid wages of at least $2.13 per hour. It is possible that if you are earning hundreds of dollars in tips nightly, your income tax deduction will eat up your entire check. However, in that case you should still receive a payroll check for $0 and a paystub that itemizes your earnings, tips, deductions and withholding.

    Our suspicion is that this employer is not paying social security or employment taxes, and is instead merely keeping your wages for himself. It appears employees are being duped into believing their income taxes have been paid, when they have not. This, of course, is illegal. You should file a wage claim with the Texas Workforce Commission at http://www.twc.state.tx.us/ui/lablaw/wageclaim.pdf. HTH, and thanks for reading the blogs!~ Amelia

  55. Posted by: Sasha

    Hi, I work for a locally owned one of a kind restuarant in the state of Georgia. As the business is new and opened at the beginning of “off season”, clientele has been low and thus my tips are terrible. I have not made anything close to minimum wage ($2.50 hrly + tips) in several months. I spoke to the wait staff manager who directed me to the store manager who directed me to the owner who directed me back to the store manager who said he would look into it. Needless to say nothing is being done. The store manager and wait staff manager did agree that the pay was not right, but one fired the other and nothing is going to be done about it now. I want to file a claim with the department of labor, but I cannot find all of my check stubs since I recently moved. Will the DOL go through company records or only use what I provide? Thanks!

  56. Posted by: Amelia

    Hi Sasha! Good news! The Department of Labor will inspect the company records. If they find that you have not earned at least the minimum wage for hours worked, they will force the employer to pay the difference. So you can go ahead and file a wage complaint either with the Georgia Department of Labor or the U.S. Department of Labor at http://www.dol.gov. If you find your check stubs at some point, that’s great, but do not wait to file the wage complaint.

    You may also want to start looking for a better job. Many restaurants fail in the first year or two of operation, and these guys don’t sound like the sharpest crayons in the box, if you understand what we mean. HTH, and thanks for reading the blogs!~ Amelia

  57. Posted by: Lauren

    i had a couple walk out on a dinner ticket. the owner makes servers pay for tickets that have been skipped out on out of our own pocket. is this legal?

  58. Posted by: Amelia

    Hi Lauren! In many states it is illegal for the employer to charge servers for walk-outs. Which state are you in? ~ Caitlin

  59. Posted by: Kristen

    Hi, i live in the state of Missouri and I know working as a waitress you can get paid 7.25/hrs or half of that. I get paid 7.25 an hr and 10% tip. Does my bosses have to give me tip or no?? Or as long as I’m getting paid 7.25 then that’s it?? So am I entile to all my tips of I get paid minmium wage??

  60. Posted by: Amelia

    Hi Kristen! Unfortunately, this is probably legal as long as you are being paid at least the state minimum wage. Contact the Missouri Division of Labor Standards at http://www.dol.gov/whd/regs/compliance/whdfs22.htm for a reading on your particular situation. HTH, and thanks for reading the blogs!~ Amelia

  61. Posted by: Lindsay

    Hi, I work in Texas at a restaurant-movie theater hybrid. On normal shifts, hosts and box office attendants make $7.25. Bartenders and food runners make about $6.00 plus tips and/or tip share. Servers make $2.13 plus tips. However, since business is slow on weekday mornings, only one experienced employee runs the entire front of house (the only other employees there are a cook and a manager). That means running around like crazy trying to sell tickets, host, run food, bartend AND serve at the same time…for a fraction of the sales! On, these weekday mornings, I only get paid $2.13 an hour to do almost every job in the building. Is this legal?

  62. Posted by: Amelia

    Hi Lindsay! It may not be legal. Under both federal and Texas law, a food server or tipped employee can be paid just $2.13 per hour. However, there are limits to the amount and type of non-food-service work that the employee can be required to do, unless she is paid the minimum wage of $7.25 per hour. Contact the TWC, the Texas Workforce Commission at http://www.twc.state.tx.us/ for a reading on your specific situation. HTH, and thanks for reading the blogs!~ Amelia

  63. Posted by: francisco

    I used to work in a MEXICAN RESTAURANT IN North Laurel, Maryland
    They never said into their policy (they have none written) they charge SERVERS for their mistakes, or miss understanding. For example If a customer ordered a burrito. The menu says that the burrito comes with rice inside. And the customer rejected by saying they did not notice or by saying that they thought that it came on the side…. the management will charge the server because they are supposed to explain the dish. Same with drinks!

    The server most of the time will never have the product either, specially if is a Drink.

    What makes it even worse is that the charge full price not event cost or discount….full price.

    There is any law that I could show to them? Is that legal?

    I stopped working there but I would love to do a favor for my fellows ex-coworkers that in fact most of them are illegals.

    I will truly appreciated it

    Thanks in advance

  64. Posted by: Amelia

    Hi francisco! This policy is harsh and completely unfair. If it results in the employees earning less than the state minimum wage for hours worked, it may be illegal. You can file a wage complaint with the Maryland Department of Labor, Liscensing and Industry at http://www.dllr.state.md.us. HTH, and thanks for reading the blogs!~ Amelia