法律英语：55 Minimum Wage for Tipped Employees

by Michael W. Flynn

First, a disclaimer: Although I am an attorney, the legal information in this podcast is not intended to be a substitute for seeking personalized legal advice from an attorney licensed 1 to practice in your jurisdiction 2. Further, I do not intend to create an attorney-client relationship with any listener.

Today’s topic is minimum wage. Rob from New York wrote:

The restaurant that I work for in New York City was paying tipped employees $4.60 an hour. They recently lowered our wages to $2.10 an hour claiming that "Tipped employees that make more than $7.00 an hour in tips will be paid $2.10 an hour not $4.60." Do they have [the] legal right[] to do this?

Great question, Rob. It seems that you are correct, and that your employer must pay you at least $4.60 per hour.

The first minimum wage law in the United States took effect in 1938, and required employers to pay to each of their employees who is engaged in commerce or in the production of goods for commerce wages at the following rates—(1) not less than $1 an hour.” Most recently, in 1997, Congress increased the minimum wage to $5.15 per hour. The issue is under debate in Washington now, but no single bill has been passed by both the House and the Senate.

The original law provided the $1 wage and also included reasonable costs of food or lodging 3 provided by the employer. So, if the employer fed and housed you, the employer could effectively deduct 4 this cost rather than paying the full $1 wage.

Today, a similar policy applies to tips. Under federal law, most employers of a tipped employee are only required to pay $2.13 an hour in direct wages if that amount plus the tips received equals at least the federal minimum wage. If an employee’s tips combined with the employer’s direct wages of at least $2.13 an hour do not equal the federal minimum hourly wage, the employer must make up the difference (1).

In New York, the minimum wage increased to $7.15 per hour on January 1, 2007. Under New York law, the employer may apply a “tip credit” of $2.55 against the normal minimum wage for food service workers. This means that the employer can apply up to $2.55 per hour in tips against the minimum that he would normally have to pay you. So, for food service workers such as waiters or busboys, the minimum wage is $4.60 per hour (2).

So, Rob, it seems that your employer might have it wrong. The quick and dirty tip is to politely discuss the issue with your employer and bring a copy of the New York Minimum Wage Increase Notice. Consider finding an attorney licensed to practice in New York to help you if your discussions with your employer do not go well.

Minimum wage laws vary greatly from state to state, and can even vary from industry to industry. No state can pay less than the federal minimum wage, but states can, and many do, pay more. For example, Washington State appears to have the highest minimum wage, at $7.93 per hour. Cities can also set higher minimum wages than their state. For example, the minimum wage in California is $7.50 per hour, while the San Francisco minimum is $9.14.

If you think that you are not being properly paid, the quick and dirty tip is to contact the United States Department of Labor 5 Wage-Hour website:.............and/or call their Wage-Hour toll-free information and help line, 1-866-4USWAGE (1-866-487-9243). Or seek assistance from a labor and employment attorney licensed to practice in your jurisdiction.

Thank you for listening to Legal Lad’s Quick and Dirty Tips for a More Lawful 6 Life.

You can send questions and comments to.............or call them in to the voicemail line at 206-202-4LAW. Please not that doing so will not create an attorney-client relationship and will be used for the purposes of this podcast only.

Legal Lad's theme music is "No Good Layabout" by Kevin MacLeod.