I work as a server at an expensive restaurant. We are required to show up an hour before our restaurant opens to prep things like cutting vegetables, cutting bread, chopping garlic and other herbs, etc. In addition, we have closing work of the same type. Sometimes the manager asks us to do things like clean the restaurant, polish and roll silverware and wine glasses, and sometimes servers even do the dishes.

No matter what we are doing, for this hour before we open and another hour after we close we are paid minimum wage of $3.50.

Is this legal? I am under the impression that if you are a "tipped employee" things like cleaning and kitchen prep are not part of your duties, and if you do them then you must be paid regular minimum wage of $7.00.

Does anyone have any information about this? Thank you very much.

Dual Jobs: When an employee is employed concurrently in both a tipped and a non-tipped occupation, the tip credit is available only for the hours spent in the tipped occupation. The Act permits an employer to take the tip credit for time spent in duties related to the tipped occupation, even though such duties are not by themselves directed toward producing tips, provided such duties are incidental to the regular duties and are generally assigned to such occupations. *Where tipped employees are routinely assigned to maintenance, or where tipped employees spend a substantial amount of time (in excess of 20 percent) performing general preparation work or maintenance, no tip credit may be taken for the time spent in such duties.*

It seems this is legal as long as you do not spend more than 20% of your time doing non-tip duties.

http://www.dol.gov/esa/whd/regs/compliance/whdfs15.pdf