Should a waitress be compensated for lost tips when she has to do kitchen work?

Should a waitress be compensated for lost tips when she has to do kitchen work? Find out on Paywizard.org.
Question:

 

Can an employer with hold 10% of an employees tips? My daughter is a waitress earning the minimum. Last night her boss pulled her to the kitchen to do work there without receiving tips. He refused to pay her what the kitchen help makes, because she was not on the schedule to work in the kitchen. Is this allowed?

Answer Paywizard:

 Since I don't know in what state you live, I can only give you the information that the U.S. Department of Labor writes about Tipped Employees Under the Fair Labor Standards Act.

About your first question - can an employer with hold 10% of an employees tips - the Department says that the law forbids any arrangement between the employer and the tipped whereby any part of the tip received becomes the property of the employer. A tip is the sole property of the tipped employee. Where an employer does not strictly observe the tip credit provisions, no tip credit may be claimed and an employee is entitled to receive the full cash minimum wage, in addition to retaining tips they may\should have received.

There are exemptions:

The requirement that an employee must retain all tips does not preclude a valid tip pooling or sharing arrangement among employees who customarily and regularly receive tips. Only those tips that are in excess of tips used for the tip credit may be taken for a pool. Tipped employees cannot be required to contribute a greater percentage of their tips than is customary and reasonable.

Your daughter should ask her boss whether he takes a percentage of her tip for a pool.

Service Charges could be confused with tip.

A compulsory charge for service, for example, 15 percent of the bill, is not a tip. Such charges are part of the employer's gross receipts. Where tips are charged on a credit card and the employer must pay the credit card company a percentage on each sale, then the employer may pay the employee the tip, less that percentage. This charge on the tip may not reduce the employee's wage below the required minimum wage.

Your second question - can the boss of you daughter force her to work in the kitchen where no tips are paid - the Act says:

When an employee is employed concurrently in both a tipped and a non-tipped occupation, the tip credit is available only for the hours spent in the tipped occupation. The Act permits an employer to take the tip credit for time spent in duties related to the tipped occupation, even though such duties are not by themselves directed toward producing tips, provided such duties are incidental to the regular duties and are generally assigned to such occupations. Where tipped employees are routinely assigned to maintenance, or where tipped employees spend a substantial amount of time (in excess of 20 percent) performing general preparation work or maintenance, no tip credit may be taken for the time spent in such duties.

You can find more information on the Dol.gov website, by clicking on the link tipped employees.

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