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Minimum Wage and Tips Washington Washington

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  • Minimum Wage and Tips Washington Washington

    Hi, I'm new to the forum because I searched google and couldn't find an answer.

    So I work at a family owned restaurant that is very popular with under 25 employees. I get paid minimum wage and 10% of my pay is counted as tips. So say I make $100 for the pay period, not including tips. Well ten percent of that is $10, so I get that in tips. So my paycheck in total is $110. I'm mad about this because sometimes customers leave me $50 tips and the money either goes to the managers or the owner, I'm not totally sure. They say that the 10% is my tips. When i signed up i signed a contract saying that i get 10% of the tips. I thought it was a pool, but no. Is this legal? I'm going to be quitting in the next couple of weeks but I was wondering about this because it seems like they are scamming all of us and I wouldn't mind getting back tips. As a side note I have worked there six months. Can someone explain the legal reason if it is legal?

  • #2
    Probably not legal. But I am going to ask you to read the following factsheets. People are fond of clean simple answers that are not actually accurate. Answers that are accurate tend to be a bit messy. Rather then coming up with an over simple answer, take a hard look at the DOL's actual rules on tips, and see exactly which rules are being violated.

    http://www.dol.gov/whd/regs/compliance/whdfs15.htm

    http://www.dol.gov/whd/regs/compliance/whdfs15a.pdf
    Last edited by DAW; 06-02-2012, 01:28 PM.
    "Reality is that which, when you stop believing in it, doesn't go away".
    Philip K. **** (1928-1982)

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    • #3
      Tips belong to the employee to whom they are left

      Here is the new Feb 2012 federal rule on tips... Just for the record, a tip employee is a minimum wage employee for Wage Hour enforcement purposes, hence, unless a valid tip pool is in place the employee must keep all tips.

      http://www.dol.gov/whd/FieldBulletins/fab2012_2.pdf

      In 1974, the tip credit provision was amended in pertinent part to add a requirement that tips received by the employee must be retained by the employee except through valid tip pooling arrangements among employees who customarily and regularly receive tips. See Pub. L. No. 93-259, §13, 88 Stat. 55 (1974).

      In light of the agency's view that the legislative history to the 1974 amendments clearly demonstrated Congress' intent to permit an employer to use its employees' tips only as specifically prescribed by section 3(m), Wage and Hour concluded that "[i]f an employer should elect not to avail himself of this limited exception [to pay the full minimum wage], he would have to pay his tipped employees in accordance with the Act's minimum wage standards and, in addition, allow them to keep their tips." Id.


      A number of courts analyzing section 3(m) shortly after the 1974 amendments concurred with Wage and Hour's assessment of the new tip retention clause. "[W]e agree," the Fourth Circuit wrote, that "tips belong to the employee to whom they are left.
      ========================================

      "A veteran - whether active duty, retired, national guard, or reserve - is someone who, at one point in his or her life, wrote a blank check made payable to The 'United States of America', for an amount of 'up to and including my life.'" (Author unknown)

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      • #4
        So I read everything and what it is saying that unless there is a tip pool the tips are mine, besides the tip credit which we do not do. There is nothing about the 10% rule so I'm assuming that it is not legal unless someone can find something that says it is an alternative to tips.

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        • #5
          Agreed. Just keep your claim worded in terms of the actual FLSA rules. The federal rules are a "floor", applicable in all 50 states. States can have rules more favorable to the employes then the feds do, and some states do indeed have such rules. Your state is not my state and I have no idea what WA tip rules (if any) are. But there is nothing that WA state or your employer can do to make the federal tip rules go away.
          "Reality is that which, when you stop believing in it, doesn't go away".
          Philip K. **** (1928-1982)

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          • #6
            Thanks! You all have been a ton of help. I'm getting the idea that I should file the complaint on the federal law level instead of the state because the employer cannot take tips under federal law. Just for kicks and giggles can someone give me more info in the WA state law, regarding the 10% compensation for tips? Or does the 10% compensation go against Federal Law too, or is there something in the federal law about it?

            Thanks Again!

            Comment


            • #7
              Some one who is not me will have to address WA tip law (if any).

              I have already given you the federal tip rules. There is no 10% rule. Your employer made that up. Look at the actual rules the federal government actually knows about. Phrase your argument in those terms.
              "Reality is that which, when you stop believing in it, doesn't go away".
              Philip K. **** (1928-1982)

              Comment


              • #8
                Ok, thanks a bunch, if any one from washington could chime in that would be great! Now how do I file the complaint? Also I have like 5 coworkers that are with me on this, how do I get them involved, do they each need to file or can we all fill out the complaint?

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                • #9
                  I have a technicality question that just came up. Are waiters that work at restaurants automatically tipped employees? I'm just wondering because I have not technically taken a tip, and therefore I am not, maybe, a tipped employee. My paycheck shows the 10% that I get but it does not specifically say tip, or anything of the sort, so if I never was technically a tipped employee, waiter, do I still have a case?

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                  • #10
                    From the federal DOL factsheet previously cited:

                    Tipped employees are those who customarily and regularly receive more than $30 per month in tips. Tips are the property of the employee. The employer is prohibited from using an employee’s tips for any reason other than as a credit against its minimum wage obligation to the employee (“tip credit”) or in furtherance of a valid tip pool. Only tips actually received by the employee may be counted in determining whether the employee is a tipped employee and in applying the tip credit.
                    "Reality is that which, when you stop believing in it, doesn't go away".
                    Philip K. **** (1928-1982)

                    Comment


                    • #11
                      Yes, but I have not gotten "tips" per say, so am I tipped?

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                      • #12
                        Are you saying that you are such a bad waiter that none of your customers have ever left a tip?

                        Or are saying that someone who is not you is taking the tips left by your customers?
                        "Reality is that which, when you stop believing in it, doesn't go away".
                        Philip K. **** (1928-1982)

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                        • #13
                          The second one, the fact is I have never gotten a tip

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                          • #14
                            Again, from the federal tip factsheet previously cited:

                            4) that all tips received by the tipped employee are to be retained by the employee except for a valid tip pooling arrangement limited to employees who customarily and regularly receive tips;

                            Retention of Tips: A tip is the sole property of the tipped employee regardless of whether the employer takes a tip credit. The FLSA prohibits any arrangement between the employer and the tipped employee whereby any part of the tip received becomes the property of the employer. For example, even where a tipped employee receives at least $7.25 per hour in wages directly from the employer, the employee may not be required to turn over his or her tips to the employer.
                            Last edited by DAW; 06-05-2012, 05:19 AM.
                            "Reality is that which, when you stop believing in it, doesn't go away".
                            Philip K. **** (1928-1982)

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