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Tipped employee... but not.

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annayama

Junior Member
Hello.

My husband worked as a busboy at a restaurant for about 8 months.

- The boss agreed to $8.50 an hour
- This was done by giving him a $5.50 "base" salary plus $3 in tips, cash.
- My husband was not a tipped employee in the sense that he received no tips from customers and there was no valid tipping pool at the restaurant.

Is it against the law to pay wages in this matter? It seems like the employer is getting to take a tip credit based on false pretenses.

In addition:
- Sometimes, my husband worked overtime.
- When he did, the boss only paid him the OT based on 150% of $5.50, the base salary. This worked out to less than the agreed amount of $8.50 per hour.
 


annayama

Junior Member
Does the business have revenue >$500,000 annually, or take part in even the smallest amount of interstate commerce?
Just a restaurant in Austin, no interstate commerce.
I'd probably guess that the revenue is not over $500,000 annually, but I'm not sure, as it's a fairly popular restaurant.
 

FlyingRon

Senior Member
In Texas, they can count tips towards your minimum wage but the employer is required to make up the difference if the employee doesn't make enough in tips.
This is distinct from the federal tip wage minimum (which still requires an employee to receive at least $30/mo in tips to qualify).
 

single317dad

Senior Member
Just a restaurant in Austin, no interstate commerce.
I'd probably guess that the revenue is not over $500,000 annually, but I'm not sure, as it's a fairly popular restaurant.
Interstate commerce can be something as small as ordering any supplies from out of state, or making interstate phone calls as a matter of business.

If the business does not meet either of those requirements, they may not be required under FLSA to pay overtime at all. Texas has no overtime law so the FLSA would be the only standard to meet.
 

FlyingRon

Senior Member
I wouldn't be too sure that their receipts aren't over $500,000. Even most McD's locations can do that.
 

TinkerBelleLuvr

Senior Member
There is a special formula for calculating overtime for tipped employees and it is NOT 150% of their pay.

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

Good explanation of how overtime is calculated when there is tip credit involved:
http://www.elitepayroll.net/correctly-calculate-overtime-wages-for-tipped-employees/

Do you have pay stubs? If so, I suggest a call to the DOL.
 

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