UnderCover Waitress: Florida Server Tips and Dine and Dash

Friday, August 30, 2013

Florida Server Tips and Dine and Dash

Ask the Waitress!

I am in Florida. I thought it was illegal for supervisors and management in the restaurant business to accept tips not only from the tipped employees but also as part of their job, leading to them even taking tables away from servers with the excuse of helping out the server(s) or sending the scheduled server home early so they could  pick up tables. Thanks for the help. Also I thought it was illegal to charge the servers for walk-outs -federally and state enforced thanks again. 

Unfortunately, Florida is not the best state for worker rights. I will begin with my usual caveat, I am not a lawyer. I can not and do not give legal advice. You bring up a few issues in your question, let's tackle them one at a time, shall we?

Tip Pools

It is illegal for management to take worker tips; in other words, you manager may not dip their hands into a tip pool. Managers may not receive tip outs from servers (or anyone else.) This is a federal regulation.

Taking Tables

You also ask about managers taking tables. I believe they get around this by having more than one job. If a manager sends you home and takes tables, then the manager is also performing the duties of a server. I highly doubt that the manager clocks out and clocks back in at a server's wage, and the restaurant is saving a whopping $2.13 per hour per sever by sending you home. That is not a large savings, and the only person who seems to benefit is the manager. Technically, however, I believe it is legal. The manager is not taking your tips if she tells you that is not your table.

It is unwise and unethical for management to do this. It alienates servers who will feel understandably angry and cheated. Happy employees focus on doing a good job. Unhappy employees focus on anything else, including getting a different job elsewhere. Alienated employees talk, as well. I can't imagine an unhappy server suggesting that her friends eat at her restaurant -- just the opposite is true, and unhappy employees can decrease a company's business.

The recent Starbuck's lawsuit brings up one other issue: calling an employee a supervisor does not magically change her job description. The reason that shift supervisors at Starbuck's do receive a portion of tips is that 95 percent of their job is serving customers, which is what employees are tipped for. The real test of whether an employee has a right to participate in the tip pool is her job description, not a fancy job title. This is worth mentioning; however, I have no doubt that when you say, "manager," you are referring to somebody with a managerial job description.

Walk-Outs

The Consumerist published a well-written response to the question, "Is it legal for restaurants to charge servers for walk-outs?" The rules and regulations regarding this are federal. One scenario is crystal clear, the other is a bit of a gray area.

Crystal Clear

First, if the removal of the cost of the walk-out throws the server to below minimum wage, then this seems to be a clear case of wage theft. Let's say you make $3 per hour and the minimum wage is $8. (I use round numbers for ease.) You have to make $5 per hour in tips in order to make full minimum wage. If you only make $3 each hour in tips, then you are making $6 per hour. Your employer owes you an addition $2 per hour.

Let's say you work ten hours. You make $3 per hour in wages, and $6 per hour in tips. You have made more than the minimum wage of $8; you have made $9 per hour for ten hours = $90.

One of your tables walked out of the restaurant. Their bill was $20. Your employer makes you pay, which brings you down to $70 for ten hours. This is below minimum wage, and illegal. Your employer is now guilty of wage theft.

Gray Area

In the above example, let's say the walk-out only cost you $10. You have had to pay for a walk-out, but still have $80 for ten hours, which means you made minimum wage. Is this legal?

According to the Fair Labor Standards Act, tips are the property of the employee. Outside of a valid tip pool, employers may not require employees to turn over their tips to the restaurant.

It may not be considered wage theft because tips are not wages. However, it still seems to be a violation. The problem is that it happens all of the time, and restaurant owners and managers get away with it.

It won't cost you anything to give your local Florida Department of Labor, Wage and Hour Division a call and tell them your employer is taking your tips to cover restaurant costs. If more servers stand up for their rights, perhaps we won't lose them.

Good luck, and thank you for Asking the Waitress!








2 comments :

  1. Florida has always struck me as a state where the government and the system of how things are done are so tangled up into a mess that it seems it'll never get fixed. Its record on working rights doesn't surprise me.

    ReplyDelete
    Replies
    1. I fear making Lincoln turn over in his grave, but it often feels as if, regardless of the north winning the Civil War, we remain two separate countries.

      Delete

Please share your thoughts.