Are Tipped Employees Owed Minimum Wage for Untipped Work?

Posted on behalf of Peter T. Nicholl in Unpaid Overtime Apr 15, 2021

server disinfecting restaurant tableWorking as a server involves more than simply taking orders and bringing food and drinks to customers. Servers often do a lot of side work before, during or after their shifts. For example, they may need to clean, restock a workstation, roll up silverware in napkins and perform many other tasks.

While these tasks are essential to the running of a restaurant, servers do not get tipped for them. This does not become a legal issue unless servers are doing a significant amount of untipped work.

Below, learn more about when untipped work is covered by minimum wage. If you have been denied minimum wage owed to you under federal law, call The Law Offices of Peter T. Nicholl to schedule a free legal consultation with an unpaid overtime lawyer. Our firm has helped many employees secure the wages they were illegally denied.

When Side-Work Might Qualify for Minimum Wage

Many restaurants would have trouble staying open if they were required to pay their servers and bartenders minimum wage. That is why state and federal wage laws allow servers and bartenders to be paid less than minimum wage if they can make up the difference in tips.

However, sometimes restaurants abuse this exception. For example, if they require servers and bartenders to do a lot of untipped work, they may be breaking wage laws. Under the Fair Labor Standards Act (FLSA), tipped employees must be paid minimum wage for untipped work when that work accounts for more than 20 percent of the tipped employee’s time.

If the side work accounts for less than 20 percent of the tipped employee’s time, employers can still pay the required minimum wage for tipped employees, which is $3.63 in Maryland. The idea is that the tips the employee receives bring his or her hourly compensation up to the standard minimum wage rate of $11.75 per hour for 2021.

Too much untipped work could make it impossible for the employee to make up the difference between $3.63 per hour and $11.75 per hour in tips.  

Examples of Side-Work

There are numerous examples of side work for which tipped employees do not receive tips, such as:

  • Preparing workstations
  • Preparing food
  • Cleaning workstations
  • Restocking workstations
  • Rolling up silverware
  • Bagging up trash and taking it out
  • Cleaning the kitchen
  • Sanitizing dining areas
  • Dusting
  • Sweeping
  • Routine maintenance throughout a shift

While these are essential tasks involved in running a business, tipped employees are not tipped for these tasks. Many of these tasks are done when customers are not there or in the back of the building where customers cannot see the employees.

If side work caused an employee to work more than 40 hours in a week, the hours over 40 must be paid at a rate of time-and-a-half. However, if side work needs to be compensated at the minimum wage rate, employees need to receive overtime pay at a rate of one-and-a-half times the minimum wage rate of $11.75 per hour, not $3.63.

If you do side-work off the clock on a regular basis but have never been paid overtime, you may have been wrongly denied compensation.

Can I Seek Damages Beyond the Wages I Was Not Paid?

You may be asking this question if you were denied minimum wage or overtime compensation. The answer is yes, in addition to the wages you were wrongly denied, you may be eligible to seek liquidated damages. In an FLSA claim, liquidated damages equal the amount of unpaid wages. There is also a provision to provide for attorneys’ fees and court costs.

However, there is limited time to pursue a claim. It is important to talk to an experienced attorney right away to discuss your potential options.  

Were You Denied Overtime or Minimum Wage? Call Today

You may have legal options for pursuing the unpaid minimum wage or overtime compensation you were wrongly denied. It is important to talk to an experienced lawyer about your options for recovering this compensation.

Our firm has a proven track record of recovering unpaid wages that were illegally denied. We have extensive knowledge of state and federal labor laws and how to prove a violation occurred.

There are no upfront fees for our services and the initial consultation is free of charge.

Contact our personal injury lawyers for a free consultation if you have been injured by another’s negligence. You may be entitled to compensation.



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