"A right delayed is a right denied."

- Martin Luther King, Jr.

Miami Minimum Wage Attorney

Has Your Employer Failed to Pay the Minimum Wage?

Under the Fair Labor Standards Act (FLSA), the federal minimum wage in effect throughout the United States since January 1, 2013 is $7.25/hour. However, in Florida, where State law allows employees to seek the recovery of unpaid minimum wages going back as far as five (5) years, covered employers are required to pay a higher minimum wage.

As of January 1, 2015, the minimum wage in Florida is $8.05/hour. Likewise, over the past several years, the previous minimum wage rates in Florida were: (i) 2014: $7.93/hour; (ii) 2013: $7.79/hour; (iii) 2012: $7.67/hour; (iv) 2011: $7.31/hour; and (v) 2010: $7.25/hour

Understanding the “Tip Credit”

Under the FLSA, tipped employees are defined as workers who customarily and regularly receive more than $30 per month in tips. The law provides that tips are the sole property of an employee. As a result, employers are prohibited from using an employee’s tips for any reason other than as a credit against the employer’s minimum wage obligation to the employee (known as the “tip credit”) or in furtherance of a valid tip pool. Only tips actually received by the employee may be counted in determining whether the employee is a tipped employee and in applying the tip credit.

The FLSA permits employers to take a “tip credit” against its minimum wage obligations for tipped employees in an amount that is equal to the difference between the required cash wage (which must be at least $2.13) and the federal minimum wage. As a result, the maximum “tip credit” that an employer can currently claim under the FLSA is $5.12/hour (the federal minimum wage of $7.25 – the direct cash wage that must be paid by an employer of $2.13). However, in Florida, employers are not permitted to take a “tip credit” greater than $3.02/hour under State law. As a result, the minimum wage that Florida employers must pay tipped employees has to be at least $5.03/hour.

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Notice Requirements for the “Tip Credit”

Before an employer may take advantage of using the law’s “tip credit,” the employer must provide all of following information to its tipped employees:

  1. amount of cash, or direct, wages being paid by the employer;
  2. the amount claimed by the employer as a tip credit;
  3. notice that the tip credit claimed by the employer cannot exceed the amount of tips actually received by the tipped employee;
  4. notice that all tips received by the tipped employee are to be retained by the employee, except in the case of a valid tip pooling arrangement; and
  5. notice that the tip credit will not apply to any tipped employee unless the employee has been informed of the law’s tip credit provisions.

Employers who fail to provide the required information about the “tip credit” to employees cannot use the law’s tip credit provisions and therefore must pay tipped employees at the full minimum wage while also ensuring that employees are permitted to keep all of their tips.

Common Minimum Wage Problems Experienced by Tipped Employees in Miami

  • Employees who don’t enough money in tips to make up the difference between the direct wage paid by the employer (which must be at least $2.13/hour under the FLSA and $5.03/hour in Florida) and the minimum wage, the employer must make up the difference.
  • If an employer pays no hourly wage at all, and an employee only receives tips, the full minimum wage is owed.
  • Deductions for walk-outs, breakage, or cash register shortages may not reduce an employee’s wages below the minimum wage.
  • Where a tipped employee is required to contribute to a “tip pool” that includes employees who do not customarily and regularly receive tips—such as dishwashers, cooks, and maintenance workers—the employee is owed both all of the tips he or she contributed to the pool plus the full minimum wage.
  • For employees who work in both tipped and non-tipped positions—for example, an employee employed both as a maintenance person and a server—the tip credit is available only for the hours spent by the employee in the tipped occupation. As a result, while a server who spends some time cleaning and setting tables, making coffee, and occasionally washing dishes or glasses is considered to be engaged in a tipped occupation even though these duties are not tip producing, where a tipped employee spends a substantial amount of time (in excess of 20% in a workweek) performing related duties, no tip credit may be taken for the time spent carrying out those duties.
  • Managers or owners of a business who take (i.e., steal) an employee’s tips. Tip theft is against the law.

If you believe that your current employer, or any of your former employers over the past three (3) to five (5) years, failed to comply with the law’s minimum wage requirements, contact a Miami employment law lawyer from the Law Office of Keith M. Stern, P.A. today for a free case evaluation. We have the experience to protect your rights as a worker, and Your Work Is Our Business.

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