Stiffed Servers Fighting for Fair Florida Employment Treatment

Miami, FLA group of waitresses and waiters working at a South Florida bistro recently posed a question to the Miami Herald about their rights under Florida labor law. The combination of their fixed salary and tips falls below minimum wage—reportedly a violation not only of Florida employment law but also of the US Fair Labor Standards Act (FLSA).

The waiters and waitresses summarize their pay structure in this way: their fixed salary is below minimum wage, but the difference (and what gets them to the minimum wage threshold or higher) has always originated with the 80 percent net share of customer tips. The remaining 20 percent, they report, is paid to food and beverage supervisors by the management of the bistro (which was not identified).

According to the servers, the problem is the reduction in tip volume stemming from the poor economy—tip volume (their share, at least) that no longer brings them up to minimum wage. But do they have a valid Florida employment law complaint?

It appears that they do.

According to FLSA rules, tips can only be credited against wages if certain criteria are met. Employers are required to inform employees about tip crediting. Employees must receive at least $2.13 hourly direct wages, which is known as the low base. However, there are two provisions where the employer appears to be tripping up.

Combined total employee wages (low base plus tips) must reflect a minimum of $7.25 per hour. Secondly, for an employer to claim the tip credit employers and supervisors cannot receive any portion of the tip pool.

If the employer depends on pooled tips to make up the difference between the low base and minimum wage under FLSA and Florida labor law, then the employer is not allowed to share any percentage of the tip pool with supervisors. The fact that servers are not making minimum wage even with tips is the second violation.

In this case, the failure to meet two of those criteria cancels the tip credit. By continuing to claim the tip credit within the current circumstances, the employer is in violation of FLSA rules and could face penalties.

The servers were advised to raise the matter politely with management as a first response. Should that response not result in compliance, then the servers have a legitimate case against their employer under FLSA and Florida state labor laws.