08-27-2010, 07:54 PM
My boss is a salaried employee who works a 4 day work week. She works a 4 day work week bartending and managing other staff, then takes friday, saturday, and sunday off. During the week she bartends and on the weekends she takes off one of her partime employees work. Are salaried employees allowed to work during the week making good tips?:mad:
08-27-2010, 09:47 PM
If she's doing work that would generally garner tips, then her salaried status is irrelevant. She's not getting tipped out of a tip pool when she is not tending bar, is she?
Agreed, although this is maybe not obvious. People think that "salary" means something by itself. It mostly does not. The Exempt status means something, and people think that Exempt = Salaried (sometimes true) or Salaried = Exempt (also sometimes true). What people are missing is sometimes Hourly = Exempt, or Commission = Exempt, or Salaried = Non-Exempt. But these are very loosely related concepts. People sometimes try to create rules that do not actually exist anywhere in the law. Such as Salaried = _______. Exempt status is actually a matter of the employer qualifying the employee for one of the 100 or so Exempt classifications, which may or may not include a salaried basis requirement. Most exceptions in fact do not have a salaried basis requirement.
May I suggest instead that you read the following federal DOL factsheet on tipped employment? It contains the actual rules.
The next pointer is a 50 state chart on tipped employment. Some states have rules more favorable to the employee then the federal rules, and some states do not. It is not possible for a state to have rules less favorable to the employee then the federal rules.
08-28-2010, 06:20 AM
Agree with DAW, although there is nothing inherently illegal in federal law that would prohibit even an exempt employee from accepting tips for her personal service when periodically (or even regularly) working a few hours per week as a bartender/server.
There have been some court cases regarding managers sharing in tip pools, but those were mostly 1) on the west coast and 2) related to such managers sharing in tips pools in a 3) non-directly tipped-type establishment, like a Starbucks. There may or may not be similar cases in your state.