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  1. #1
    cal_zero Guest

    Hourly vs. Shift pay

    What is the name of your state? TX

    Hello a few months ago my girlfriend started working for an club as a waitress. Upon hiring she was asked to work 3 days a week Thursday, Friday, and Saturday. What caught my attention was that although she would be working for tips she was told that she would not make an hourly rate but instead be paid per shift. For every shift she worked she would make $25.00.

    Can an employer in TX pay per shift? Is she entitled to overtime pay for any hours a week over 40 hours? I ask this because her 3 days a week has turned into having 1 or 2 days off every 2 weeks because they are short staffed. She is regularly working 55 to 60 hours per week. Is this legal and if not what course of action should we take to try and get the money owed for the time she has worked. They keep daily time cards that she punches in and out of for every shift.

    On a side note she has been told that since she is a waitress she is not entitled to breaks or lunches through out her shift. Is this true?
  2. #2
    cbg
    cbg is offline Senior Member
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    Off the top of my head I can't think of any reason why paying her a flat rate per shift would not be legal AS LONG AS her total combined "shift pay" for whatever days she works, in a week, plus whatever tips she receives, during that same week, comes to no less than minimum wage for every hour she worked (plus one and a half times minimum wage for every hour over 40 that she works). If it doesn't, then they would have to make up the difference. Any one have a differing opinion?

    Under neither Texas nor Federal law is she automatically entitled to either a break or a lunch no matter what her position is. Neither rest nor lunch breaks are required under either Federal or state law for any employees, not just waitresses.
  3. #3
    dan148 Guest
    Quote Originally Posted by cbg
    Any one have a differing opinion?

    Hi CBG...

    I do not have a different opinion, And I am not really sure about the legalities of this but here goes.... Does the girlfriend work for a strip"CLUB", I am asking this because I know that most strip clubs do not hire employees (per say), there workers are like "Contractors" who are 1099'd (Under the table). And aren't "Contractors" exempt from hourly wage laws? If so, my question(s) to the original poster are: Does she work in a strip"CLUB" and Does she get paid cash every shift or every week (no taxes deducted)?
    CBG, your take is appreciated

    Neither rest nor lunch breaks are required under either Federal or state law for any employees, not just waitresses.

    This probably doesn't apply to her but, aren't minors required to breaks? I thought they were, but again, CBG your input is appreciated
    Last edited by dan148; 08-16-2004 at 06:58 PM.
  4. #4
    cbg
    cbg is offline Senior Member
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    Dan, the OP will have to answer your first question. But who can legally be considered an independent contractor is limited under the law, and I have a hard time envisoning a situation in which a waitress would qualify. And of course, paying someone under the table is never legal. (Not saying it doesn't happen - just that it doesn't happen legally.)

    With regards to breaks, in your state it is true that minors must be permitted breaks. In Texas, however, there is no such requirement. In Texas, NO employee, no matter what their age or position, has a statutory right to a break. It is entirely up to the employer.
  5. #5
    dan148 Guest
    Quote Originally Posted by cbg
    Dan, the OP will have to answer your first question. But who can legally be considered an independent contractor is limited under the law, and I have a hard time envisoning a situation in which a waitress would qualify. And of course, paying someone under the table is never legal. (Not saying it doesn't happen - just that it doesn't happen legally.)
    The reason I am bringing this to your attention for clarification is my cousin owns a "Gentlemens" club in ft Lauderdale, Fl and all his employees with the exception of the doorman, bouncers, and kitchen staff are paid "Shift Pay" and get the pay every night in cash, however they are 1099'd and responsible for there own taxes. So I just wanted your input, thank you for answering..once again
  6. #6
    cbg
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    Since I posted I've thought of one possible way that wait staff might conceivably qualify legally as IC's, so I guess it can be done. I suspect that in most cases where this is done, however, it's not being done legally.
  7. #7
    cal_zero Guest
    Sorry for the delay in response. She does work for a gentlemens club but she is considered a regular employee. She gets a paycheck every 2 weeks with all the normal taxes deducted from it.
    As far as her making minimum wage it seldom happens. On an average week her hourly rate comes out to around $4.00 and hour but she is starting to work move hours lately so that rate is droping. Never has she been paid for what could be considered overtime although she has only had 1 week since she started working there that she has worked less than 40 hours.
  8. #8
    cbg
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    If she is not getting at least minimum wage, in a combination of her shift pay and her tips, then she needs to file a complaint with the state DOL, wage and hour division. Her employer CANNOT legally take any adverse action against her because of this.

    Besides, I was thinking about this post yesterday. A similar (not identical) situation came up on another board where I post, and the general concensus (from some people who are better at compensation questions than I) was that it was *probably* NOT legal.
  9. #9
    Masaye is offline Junior Member
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    shift pay

    apparently shift pay verses an hourly rate must be the norm in a lot of bar/restaurants/nightclubs, etc. I am just finding out about this. It is usually paid in cash with no taxes taken out and you get to keep your tips. In other words, you get the cash and the tips without ever having to report it to anybody is what I'm hearing. If you want to be paid by the hour, then your tips would have to be put in a place where the manager would have to count it up at the end of the night to see what you made and if it matched or exceeded the minimum wage, then he is only obligated to pay you $2.15 per hr. So a lot of waitresses and ****tail waitresses prefer the shift pay and keep their tips to themselves, no questions asked. Legal??? Not really, because you really are their employee; however, you can't have it both ways. In one instance you save from having to pay taxes on all of your earnings, including your tips or all tips have to be counted at the end of your shift to ensure what you have made. The manager's obligation is if they do not know you are working for him, he doesn't have to pay worker's comp and his payroll tax is greatly reduced. So if you want your cake and eat it too, you have to make a decision. Legally, uncle Sam want s his cut from both of you. But it is what it is in this world of bars/restaurants/clubs and whatever.
  10. #10
    pattytx is offline Senior Member
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    Masaye, this post is over TWO YEARS OLD. I doubt very seriously the original poster is still hanging around waiting for advice.
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    You have not won the law suit lottery; in fact, you haven't even won the law suit scratch-off.

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