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Not being paid for OT/Tipped Emp in FL Florida

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  • Not being paid for OT/Tipped Emp in FL Florida

    My son works as a server in a SE Florida restaurant. He (and his coworkers) are regularly scheduled to work in excess of 55/hrs a week. Actually, his schedule is usually double shifts five days a week w/ a single shift on a sixth day, which works out to about 58-60 hrs/week, a schedule he is not happy with but they will not cut back on his shifts.

    I think the main reason they "over schedule" is because ALL employees are regularly paid NO MORE than 40 hours/week (sometimes less) regardless of how many hours worked. Apparently this is not an uncommon practice around here since the previous restaurant he worked at did the same thing. I don't know how they get away with the work hours magically disappearing from their timesheet when servers are recieving tips during those "phantom" work hours. From what I understand, the employers feel that the servers would rather be there making tips without regard to hourly compensation.

    What if someone is injured on the job during the non paid OT period? Are these guys dodging paying into workman's comp/unemployment pools?

    My son is afraid to speak up because he needs the job and is afraid of retaliation.

    Another neat twist they do to the tipped employees is: Charged tips are collected from the customer at the time of service. Most restaurants then give the employees their charged tips at the end of the shift in cash. This restaurant however, holds the tips until payday (every 2 weeks) where it is disbursed in paycheck form. So, if a server is tipped on a credit card they might have to wait up to 2 weeks until they receive their money. And the restaurant has dinged the customer for the full amount on the day of service, thereby allowing the restaurant to have use/access to all of the servers/bartenders tipped income for up to 2 weeks.

    So my questions are:

    Is the employer legally allowed to alter timesheets thereby skirting OT pay?
    What can be done if they are indeed, breaking Labor Laws?
    Are they within legal rights to retain charged tips for up to 2 weeks?

    Thank you for your thoughts.

  • #2
    It's not the changing of the timecards itself that is the violation, it's the failure to pay for all time worked, including overtime for over 40 hours in a workweek (in Florida and most other states). If the employees are not doing so already, they should start keeping their own records of hours worked, at home. A paper notebook or spreadsheet would be fine. All the affected (nonexempt) employees can either file claims for unpaid wages/overtime with the federal Dept. of Labor or a civil suit in the Florida courts; the first is free to the claimaint, but the second allows at least triple damages and may not may not need an attorney (depending on the amount of money we're talking about-if small claims cannot be used).

    Just for curiosity's sake, has your son or any of the other affected employees seen the time card after it's been turned in? Just wondering if the time card is physically changed (cross-outs and new times written in), the number of hours to pay being written with no correlation to the actual in/out times recorded, or if the time card is left un"changed" and the hours paid are just something completely different?

    Yes, charged tips can legally be paid no later than the following pay period.
    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
      PattyMD

      Thank you for your quick response.

      Relative to the suggestion regarding keeping track of hours, my son is doing this for the current employer per my recommendation following the previous employer's similar policy. I don't know if any of his coworkers are doing the same.

      From what I understand, the employees clock in on the computer vs "punching a clock" like I did years ago, totaling up my hours and signing my timecard. Throughout the week, as they clock out at the end of their shift, the computer keeps a running total of hours worked. But those hours worked don't go over 40/hrs week. I think they are going into their system and "erasing" time worked. Like I said my son works 55-60/hrs/wk but is paid EXACTLY 40 hrs. He says he's the only one at 40 hrs on the nose. Others get less; 37, 38, etc regardless of how many hours worked. One coworker just clocked out for the week at over 60 hrs but will get apid for 40 or less.

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      • #4
        One more time. You are focusing on what the time card or the computer is doing or what the employer is doing. The law does not care about that. The law cares about employees being paid for actual hours worked. Period. The sort of arguments you are making are the sort of smoke and mirror arguments that the employer will make. Your sole argument should the employee is not being paid based on actual hours worked. Anything you say past that point is you trying to help the employer, even if that is not your intention.

        The employee should never care what the time card says, never care what games the employer is playing. The employee should care that they are not being paid for hours worked. Period. Over thinking the situation does not help the employee.

        I am going to include a pointer to the federal rules on tips. Please notice how time cards are not actually mentioned anywhere in the rules. Anyone who works for tips needs to be familiar with these rules, especially the factsheet.
        http://www.dol.gov/dol/topic/wages/wagestips.htm
        "Reality is that which, when you stop believing in it, doesn't go away".
        Philip K. **** (1928-1982)

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        • #5
          Sorry DAW

          I did not intend to belabor the timecard issue, just answering Pattymd's question regarding such. I totally concur with you regarding the main issue which I believe to be: not being paid for hours worked, which is why I told my son to keep track of his hours when I found out about the situation.

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          • #6
            Understood. Ideally you want to make a worksheet. Determining hours worked during the workweek is everything. If this goes to court/administrative action, you want everything as simple as possible for the judge/ALJ to understand what is being said.
            - The employee must be paid at least MW for all hours worked in the workweek, although the employer is only required to contribute $2.13/hr as long as tips can cover the rest of the $7.25/hr.
            - The employee generally must be paid the balance of tips not used to "fill" in MW, although there are some exceptions. Read the factsheet.
            - Then over and beyond the MW requirements, the 50% OT premium must be paid by the employer (not using tips).

            Ideally you want it clearly spelled out what hours worked was, what the legal requirements based on hours worked are, and what the employer actually paid. In addition to hours worked, a good tip log is needed.

            Past that, IRS has a very useful tip log form.

            http://www.irs.gov/pub/irs-pdf/p1244.pdf
            "Reality is that which, when you stop believing in it, doesn't go away".
            Philip K. **** (1928-1982)

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            • #7
              Originally posted by DAW View Post
              The employee must be paid at least MW for all hours worked in the workweek, although the employer is only required to contribute $2.13/hr as long as tips can cover the rest of the $7.25/hr.
              On January 1, 2010, the minimum wage for Florida will remain unchanged at the federal rate of $7.25 per hour. The new federal minimum wage went into effect July 24, 2009. Federal law requires that employers pay the higher of the federal or state minimum wage. The federal minimum wage will prevail over the state rate until such time as the Florida minimum wage becomes higher than the federal rate.

              However, the employer must pay "tipped employees" a direct wage. The direct wage is calculated as equal to the minimum wage ($7.25) minus the 2003 tip credit ($3.02), or a direct hourly wage of $4.23 as of July 24, 2009.

              http://www.floridajobs.org:80/minimumwage/index.htm
              Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

              Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

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              • #8
                Reason I was asking the questions about the physical time cards is that, if they show that the employer is actually changing the time or saying "8 hours" when the in/out times show 9 hours, that is one indication that would imply that the employer is willfully violating the law to pay for all time worked.
                I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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                • #9
                  Good point, Patty.
                  Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

                  Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

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                  • #10
                    http://www.dol.gov/whd/regs/compliance/hrg.htm
                    Not everything in America is actionable in a court of law. Please remember that attorneys are in business for profit, and they get paid regardless of whether or not you win or lose.

                    I offer my knowledge and experience at no charge, I admit that I am NOT infallible, I am wrong sometimes, hopefully another responder will correct me if that is the case with the answer above, regardless, it is your responsibility to verify any and all information provided.

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