If you work in many parts of the service industry, you know the importance of tips to your overall income. That’s because tipped workers’ base minimum “cash wage” is only $2.13 per hour under the Fair Labor and Standards Act. There are circumstances, though, where your employer is not entitled to pay you this lower wage, even if your job position is that of a tipped worker. If you think that you’ve been unfairly denied your proper wages, you should act without delay to contact an Atlanta minimum wage lawyer.
Some places have state laws that impose higher minimum wage obligations on employers than the FLSA does. Georgia is not one of those states. The federal law, though, does erect some rules to safeguard tipped workers. As a recent minimum wage case reminds us, one of those things is that, even if you work as a tipped restaurant server, your employer cannot pay you the tipped worker wage and then assign you to tasks that do not allow you to earn tips.
L.R., the plaintiff, worked as a server at a diner. According to the server, the employer required her to perform various tasks other than serving guests. These jobs included an array of things, ranging from re-stocking the salad bar to cleaning the restaurant to rolling silverware inside napkins. None of these tasks involved interacting with customers so none of the time spent on them presented an opportunity to earn a tip.
Allegedly, L.R. spent anywhere from 30-50% of her time at work engaged in these non-tip-generating duties. At all times, the restaurant paid L.R. tipped-worker wages.
L.R.’s lawsuit alleged that the employer, by paying her tipped-worker wages but assigning her to non-tip producing tasks for much of her workday, had violated the FLSA.
The trial court ruled for the employer but the 11th Circuit Court of Appeals, whose rulings directly control federal cases in Georgia, Florida, and Alabama, overturned that ruling. The court concluded that L.R. had delivered enough proof to raise a legitimate dispute of fact, which meant that the employer wasn’t entitled to a summary judgment and the server was allowed to take her case to trial.
U.S. Department of Labor’s 2018 Wasn’t Entitled to Deference by the Court
The court’s ruling for this server is very important for several reasons, but arguably the biggest is that it represented the 11th Circuit court’s explicit rejection of a 2018 Opinion Letter from the U.S. Department of Labor that had made it much easier for employers to win these kinds of FLSA disputes involving workers who work so-called “dual jobs,” meaning the workers split their time between non-tip generating tasks and tip-producing duties. The court’s ruling said that the 2018 Opinion Letter was “not a reasonable interpretation” of the federal dual-jobs regulation, and should not be followed.
This decision expressly imposed what the court called the “twenty-percent threshold.” What that means is that, for an employer to pay an employee who has a mixture of tip-producing and non-tip producing job duties according to the tipped-worker minimum wage rules, the worker must be engaged in non-tip producing activities 20% of the time or less.
L.R.’s allegations, which asserted that she worked well over 20% of her workday on non-tip generating duties, raised a clear dispute of fact that was material to the question of whether or not the employer violated the FLSA. For that reason, she was entitled to continue pursuing her case.
If you’re working hard to make a living and your employer isn’t paying what the law says you should get, you need the right legal team to help you get what you deserve. Count on the experienced Atlanta minimum wage attorneys at the law firm of Parks, Chesin & Walbert to be that advocate for you. Our firm has a long track record of helping workers just like you and is ready to get to work on your case. Contact us through this website or at 404-873-8048 to schedule a consultation today.