Do You Have To Pay Minimum Wage For Side Work?
Be careful of breaking wage laws if you require your servers to do side work.
A federal district court recently decided that Joe's Crab Shack improperly compensated its workers for non-tip producing duties, or side work. Joe's Crab Shack pays its tipped servers below minimum wage. This is ok, because it applied a tip credit. However, its servers were also required to spend an excessive amount of time doing non-tipped work, without getting paid minimum wage.
If you require your tipped workers to do side work, here's what you need to know about side work:
What Is A Tip Credit?
Many states and the federal government allow employers to pay tipped employees below minimum wage. The laws of each state may vary. Under federal law, the Fair Labor Standards Act considers any employee who receives more than $30 in tips a month to be a tipped employee. In Massachusetts, tipped employees receive a minimum of $20 in tips per month.
The FLSA allows employers to take a maximum $5.12 per hour tip credit towards a tipped employee's minimum wage. This means, at minimum, employers may only have to pay tipped employees $2.13 per hour. (Federal minimum wage is $7.25 per hour)
Many states also allow tip credits, but the amounts can vary. Massachusetts allows employers a $6 tip credit, but Massachusetts minimum wage is $9 per hour.
What is Side Work?
A server's job is to serve the customer, take orders, bring food out, and clear the table. Side work includes tasks outside of a server's normal duties. This can include rolling napkins, vacuuming the restaurant, refilling ketchup bottles, restocking the refrigerator, or re-setting tables. These tasks don't earn the employee any tips.
Do You Need To Pay Minimum Wage For Side Work?
Under federal law, an employer can take a tip credit for some time spent doing side work. However, if the employee spends more than 20 percent of her time in a work week doing side work, the employer must then pay her the full minimum wage for the time spent doing side work.
So if your employee works 20 hours per week, and five hours during the week is spent doing side work, then be sure to pay her the full minimum wage for those five hours. If you are unsure on your rights and duties as an employer, an experienced wage and hour attorney may be able to help.
Related Resources:
- Browse Wage & Hour Lawyers by Location (FindLaw's Lawyer Directory)
- No-Tips For Your Workers? How to Make it Work Legally (FindLaw's Free Enterprise)
- NYC Restaurant Bans Tips to Benefit Servers (FindLaw's Free Enterprise)
- What Can Happen If You Take Workers' Tips? (FindLaw's Free Enterprise)