Okay, what is the law re: restaurant wages?

[Wednesdays]

I thought it didn't have to be minimum wage, that it could be as low as $2 something per hour. But my s.o. insists that by law, the worker must receive the full minimum wage ($7 or so) total in wages and tips, and that the restaurant must make up the difference if tips don't provide the $7 minimum wage.

Anyone knowledgeable in labor law able to shed some light on this? Do the laws differ by state?

Edit: we're in Oklahoma.

[Jeff In Milwaukee]

1. It may vary by state

But some states do allow a sub-minimum wage for food service workers.

In Wisconsin the "tipped minimum wage" is $2.13/hour. This applies to employees that earn more than $30 in tips per month.

[Lars39]

2. This site explains really well:

http://wiserwaitress.com

[handmade34]

3. that was the law

back in my days of being a server...

looks like the same applies today...

"Individuals employed as a “service or tipped” employee may be paid a “basic wage rate”, with the employee also receiving a “maximum tip credit”. Relevant definitions are as follows:
“Service or tipped” employee: an employee who works in the hotel, motel, tourist place, or restaurant industry, who customarily and regularly receives more than $120.00 per month in tips.
“Basic wage rate” is the minimum hourly rate a “service or tipped” employee can be paid. This amount will increase on January 1st of each year by 5% or the percentage increase of the CPI-U, U.S. city average, not seasonally adjusted, whichever is smaller.
“Maximum tip credit” is the difference between the “basic wage rate” and the current minimum wage. The payment of the maximum tip credit ensures all employees are paid an hourly wage equal to or exceeding the current minimum wage..."

[obamanut2012]

7. But the restauarant gets to say how much tips they are earning

It's determined by their sales. There is no differential made up by any servers I have ever known. They also get taxed if the formula says they earned $100 in tips, even if they only earned $30.

[justabob]

11. yep

Tips are reported as a percentage of sales, regardless of what you actually made in tips, plus many restaurants have extra tip outs (also based on sales)that also eat into a waiters net pay. Most restaurants don't pay more for sidework either, though that is something that is changing finally.

[CBGLuthier]

4. I live in OKlahoma and have 3 kids in restaurants (while going to school)

Generally speaking you either get the sub minimum wage or if you are in a position to not receive tips, training or side work and such, you get regular minimum wage or higher. When my youngest serves she gets sub minimum, when she does the side work she gets a small tip out so she is paid regular minimum wage to make that difference.

I have never ever heard of a server not having a good night and the restaurant making up the difference. And lets be honest Oklahoma sure as hell will not have more protection for workers than any where else.

I would think on an average basis most servers tend to make it above the minimum during a week. It is hard work but they do make fair money at times.

[Recursion]

5. No non-farm work can be for less than minimum wage, but tips are included in that

So, if a waitress has a slow night and doesn't get any tips, the restaurant has to pay her minimum wage for her time.

If she makes at least minimum wage in tips alone, they don't have to pay her anything hourly, but most places will still pay something.

Then again, there are restaurants in Manhattan where the waiters have to pay to get a shift.

[Wednesdays]

10. My s.o. says that's her understanding

Maybe it's different in other states and/or some restaurants try to skirt the law?

[Maine-ah]

6. here in Maine....

it's half of minimum wage. If by the end of the work week, a server does not make minimum wage (hourly + tips) the restaurant has to make up the difference.

[Scuba]

8. Paying workers just makes them uppity.

They should be honored to serve the oligarchs without compensation. Ungrateful wretches.

[Jbradshaw120]

9. It vary state to state.

In my great state Montana this tip credit is illegal they get the full minimum wage which is $7.80/hr here plus anything they get in tips. This actually was a really big fight here about four years ago in the state leg. Republicans were attempting to institute the tip wage credit aka sub minimum wage for tipped employees and it got really heated but in the end with the support from governor Schweitzer the democrats and the unions were able to stop them from passing it.

[sinkingfeeling]

12. This lawsuit against Outback in Tulsa would indicate that Oklahoma law requires a cash wage

of $3.63 per hour in addition to tips.

http://law.justia.com/cases/oklahoma/court-of-appeals-civil/2010/461524.html


40 O.S.2001 §197.16

If the tip credit is limited to fifty percent of the minimum wage of $7.25, the minimum wage for a tipped employee in Oklahoma is $3.63 per hour. The federal Fair Labor Standards Act (FLSA) allows states to establish their own minimum wage, and employers must comply with the higher of the two. 29 U.S.C. §218(a).

Confirmed here:
http://www.dol.gov/whd/state/tipped.htm

[StrayKat]

13. Check the Dept of Labor site

No knowledge of labor law needed.

Minimum wage for waiters and other tipped employees is determined by state as does the definition of a tipped worker. The federal minimum states are allowed to set minimum wage at is $2.13/hr. Some states exploit this, others do not. You can see how your state stacks up nationally here:

http://www.dol.gov/whd/state/tipped.htm#.UPAroXfNkxE

More info on waiters/waitresses: http://www.bls.gov/oes/current/oes353031.htm

[NeedleCast]

14. It Varies Wildly State to State

There are all kinds of reasons for it too, generally based on over-complicated state tax laws. '

Some states (I think many these days) base a server's taxes on their estimated tips. It's a real boondoggle because in almost every case it makes all kinds of assumptions (that the restaurant isn't "pooling" tips, that managers/general managers/owners aren't demanding a cut of a servers tip, whether or not the restaurant "tips out" to dishwashers/bussers, etc. etc.)