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No Paycheck in Texas Restaurant Texas

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  • No Paycheck in Texas Restaurant Texas

    I've been working in a restaurant for the past 7 months and have never received a paycheck for the minimum $2.13 per hour. When I asked about this when I first started, I was told the owner withholds the money to pay our taxes for us. Is this legal?

    If not, where can I report this? Thanks!

  • #2
    If they are doing it correctly, it's not only legal, it's required. Tips are taxable income and have to have taxes withheld on them just like any other income, even though you've already received them in cash. It's possible, the higher the tips cashed out are to the hours worked, that your tips could eat up all, or the majority of, your cash tips.

    What would not be illegal is if the total of your cash wage and your tips, when divided by your hours worked for the workweek, was less than minimum wage. What would also be illegal is if the employer is withholding from YOUR pay to pay the employer share of Social Security and Medicare taxes.

    Here's an example.

    Worked 25 hours.
    Cash wage = $53.25
    Tips declared and cashed out = $250
    Taxable wage = $303.25
    Federal Income tax at Single-0 = $23.83
    Social Security tax = $18.80
    Medicare tax = $4.40
    Tips already received = $250.00
    Net pay = $6.22

    If they are doing something other than like the example, please post back with details of a representative paycheck. You are at least getting a paystub or other statement detailing your earnings and taxes, yes? That is required by Texas law.
    Last edited by Pattymd; 11-17-2010, 02:00 AM.
    I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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    • #3
      I've never received a paystub of any sort.

      On a normal day, if I work a double, I'll usually be there for 12 hours and walk away with $100 in tips. Would those withholding the entirety of the $2.13 cover taxes, etc?

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      • #4
        You can file a complaint with the TWC for the failure to provide or paystub or similar statement of earnings and deductions.
        Sec. 62.003. EARNINGS STATEMENT. (a) At the end of each pay period, an employer shall give each employee a written earnings statement covering the pay period.

        (b) An earnings statement must be signed by the employer or the employer's agent and must show:

        (1) the name of the employee;

        (2) the rate of pay;

        (3) the total amount of pay earned by the employee during the pay period;

        (4) any deduction made from the employee's pay and the purpose of the deduction;

        (5) the amount of pay after all deductions are made; and

        (6) the total number of:

        (A) hours worked by the employee if the employee's pay is computed by the hour; or

        (B) units produced by the employee during the pay period if the employee's pay is computed on a piece rate

        (c) An earnings statement may be in any form determined by the employer. The information required by Subsection (b) may be stated on a check voucher or bank draft given to an employee for the employee's wages.

        (d) In this section, "pay period" means the period that an employee works for which salary or wages are regularly paid under the employee's employment agreement.

        Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 2003, 78th Leg., ch. 461, Sec. 1, eff. Sept. 1, 2003.

        http://www.statutes.legis.state.tx.u.../htm/LA.62.htm

        Even if that were the only pay for the entire workweek, at single-0, there would STILL be a net pay of about $15.00.

        When you ask the employer for a statement of earnings and deductions, what do they say? Until you get those and find out what the employer is doing, I'm not sure how else we can help. Makes me wonder, though, if he's even calculating earnings and taxes, and paying them over to the IRS, or if he's treating you (incorrectly) as an independent contractor. Did you complete an I-9 and a W-4 form when you were hired?
        Last edited by Pattymd; 11-17-2010, 09:41 AM.
        I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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        • #5
          Also, whatever else you do, start recording all hours worked at home, plus all tips received. A paper notebook works great.
          "Reality is that which, when you stop believing in it, doesn't go away".
          Philip K. **** (1928-1982)

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