Working as a waiter in a bar, nightclub, or a restaurant is similar to working in most sales jobs. Your commission is the tips customers leave for delivering prompt and friendly service.
Achieving minimum wage is not a concern, as most waiters exceed the minimum wage standards by generating tips that often exceed $20 per hour.
However, there can be days or even a pay period or two when your tips fall below the threshold established by state law for earning minimum wage.
If you work as a waiter, and you have experienced a pay period when your earnings fell below the minimum wage established by your state, then you might be able to file a wage theft claim against your employer.
Referred to as wage theft, the practice of withholding tips on a paycheck is a common ploy used by unethical business operators to make financial ends meet.
With service sector employees relying on credit card tips, many bars, nightclubs, and restaurants pay waiters credit card tips as part of paycheck compensation.
This means that instead of getting a cash payout at the end of every shift, you have to wait a week or two before you receive your credit card tips.
This accounting practice not only gives employers time to use your hard earned money for other expenses, but it also provides employers with the opportunity to fleece waiters.
How the Law Treats Waiter Pay
Federal law mandates employers compensate workers a minimum of $7.25 an hour. However, many states have established higher minimum wage standards, and, in some cases, the state declared minimum wage is several dollars per hours higher than the minimum wage established at the federal level.
How can a waiter fall under the state-mandated minimum wage standard? The answer is that during a pay period, the waiter worked in another capacity most, if not all of the time.
For example, savvy restaurateurs cross train employees to fill in when there is a void in the work schedule. Maybe you worked as an expeditor or a non-tipped food runner during a pay period and the lack of tips put your wages well below the federal minimum wage threshold of $7.25.
State such as California have set the minimum wage well above the federal standard. The Golden state requires employers to pay a minimum wage of $12 an hour to every employee, regardless of the position.
Other states have set a minimum wage in the double digits as well. If you work as a waiter, and your pay period compensation does not exceed the minimum wage standard established by your state, then you have the right to pursue legal means to make up for the wage discrepancy.
You should also know that a growing number of states make it illegal for employers to retaliate against employees that file legal claims for wage theft.
What You Need to Do to Get Paid
A vast majority of bars, nightclubs, and restaurants use digitized point of sale systems to facilitate orders, track inventory, and account for employee work hours.
As a waiter, you need to clock in and out for every shift just like other employees. When you clock out as a waiter, the point of sale system prompts you to enter the amount of tips you made during the shift.
Underreporting tips is not only against the law, but it also diminishes your ability to obtain credit. Therefore, you should have entered all of your tips into the system for the pay period in which wage theft occurred.
When the time comes to pursue a legal remedy for a wage theft claim, you need to have physical evidence in the form of clock out receipts of the tips earned during the pay period in question.
You should first take the evidence to your employer to seek a financial remedy for your wage theft case. If you employer refuses your request for full compensation, the next step involves contacting your state Department of Labor.
Most states take a dim view of wage theft and because of the severity of the action, severe penalties are often the consequence of an affirmative wage theft decision made by a state Department of Labor.
Get a Free Evaluation Today
Working with a state licensed employment attorney to recover the money lost because of wage theft can take a considerable amount of your time.
Yet, if your employer has stolen hundreds of dollars in tips, an experienced lawyer can help you recover lost wages. Get help with your claim by filing a free case evaluation.
