Under both Kentucky and federal laws, such as the Fair Labor Standards Act (“FLSA”), service industry employees are entitled to a specific set of rights.  Unfortunately, those rights are commonly violated, and employees frequently have no idea it is happening. Having worked in the restaurant industry myself, I can personally attest to the regularity of these violations.  I wish I knew then what I know now.  Here is some information about what you are legally entitled to . . . despite what your employer may be telling you.

YOU CANNOT BE REQUIRED TO PERFORM CERTAIN TASKS AT THE MINIMUM TIPPED-EMPLOYEE RATE

      In Kentucky, restaurant employees who qualify as “tipped employees” can be paid a minimum of $2.13 per hour.  That hourly rate applies to work the employee performs which customarily and regularly generates tips or is related to the tipped occupation.  For example, delivering food to a table customarily generates tips, therefore, a server can be paid $2.13 per hour while serving food.  Although cleaning tables may not be considered a “tipped” task, it is arguably related to the tipped occupation of serving people and it is incidental to a tipped employee’s regular duties, so $2.13 an hour is likely permissible for cleaning tables as well. 

      But note, if related tasks, commonly referred to as “sidework,” exceed 20% of the employee’s time at work, the restaurant cannot take the tip credit rate of $2.13 for the time spent on sidework. This means that the restaurant must pay a server or bartender the regular minimum wage of $7.25 per hour for time spent on sidework if those tasks exceed 20% of the employee’s time.

      That is why it is crucial for servers and bartenders to keep track of days and hours worked and how much time they spend on different types of tasks during their shift.  This information will be very important down the road if you decide to bring a wage and hour complaint.

      Further, a restaurant cannot make a server or bartender perform work that is “unrelated” to the tipped occupation at the $2.13 rate at all.  “Unrelated” work must be paid at the regular minimum wage rate of $7.25 per hour.  Now, what is defined as “unrelated” is a very important distinction, and you and your employer may have different definitions of what qualifies as “unrelated” work.  Years ago when I was working as a server, I was forced to clean a bathroom after a patron had too much to drink at the bar.  I can tell you that I was not very happy about mopping up that mess at $2.13 an hour.  I submit that task was “unrelated” to my job of waiting tables.  My boss, however, may have felt differently.  Had I consulted with an attorney at the time, I might have earned myself more money for the work I did.

      Please note though, as a practical matter, it may be wise to consult with an attorney about your rights before you start insisting upon things at work.  Servers and bartenders are likely at-will employees, and you can be fired for insubordination if you refuse to perform tasks.  What I am saying is that if you are required to perform any “unrelated” tasks or more than 20% of your time is spent on “related” tasks that do not generate tips, you may be entitled to $7.25 an hour for that work.  I am NOT telling you to refuse your manager if she makes you perform tasks that you think are outside of your job description.  What you should do is keep track of the tasks you perform and how long each task takes.  Then you are equipped with the information necessary to determine if you are entitled to more money for the work you have done. 

YOU CANNOT BE FORCED TO WORK OFF THE CLOCK

      If your restaurant is requiring you to be at work, whether it is before, during, or after your shift, without being paid, we recommend that you consult with an attorney.  Your employer may be violating the Fair Labor Standards Act as well as Kentucky’s labor laws, and you may have both hourly and overtime claims. 

YOU CANNOT BE FORCED TO PARTICIPATE IN A TIP POOL

       A “tip pool” is a practice in which employees who earn tips turn over a portion of their tips to the “pool” for distribution to other restaurant staff, such as busers and hosts/hostesses.  Under Kentucky law, a restaurant cannot require its employees to participate in a tip pool.  Employees may voluntarily agree to pool their tips, but they cannot be forced to. 

      If you do agree to participate in a tip pool, it may be wise to know which restaurant employees are entitled to tip distributions.  Under federal law, for a tip pool to be valid, the participating employees must be “employees who customarily and regularly receive tips.”  How that phrase is defined can be misleading.  Hosts/Hostesses have been determined to fall within that category and are thereby eligible for tip pool distributions, despite those employees rarely being handed cash tips from customers.  In determining whether a certain staff position is entitled to distributions from the tip pool, courts will consider factors such as what customer service function the employee performs, what contact the employee has with customers, and how visible the employee is to customers.  For example, dishwashers, cooks, and overnight janitors likely fall outside the category of “employees who customarily and regularly receive tips.”  Therefore, those staff members would not be eligible to receive tip pool distributions. 

      During my time in the service industry, my tip distribution went to expo workers and salad preparers, among others.  I now seriously question the legality of that practice.  If you have any questions about the lawfulness of a tip pool or its distribution, it may be wise to contact an attorney. 

A RESTAURANT CANNOT DEDUCT MONEY FOR CERTAIN MISTAKES

      It is a violation of Kentucky law for restaurants to deduct money from your wages when you commit certain mistakes or accidents, which are rather frequent in this industry.  Here is a sample of some commonly violated provisions. 

• Your employer cannot fine you or hold you financially responsible for cash shortages in a common cash box or register.  That means that if two or more people have access to that cash box or register, your manager cannot require you to pay for any shortage incurred. 
• Your boss cannot deduct money for any breakage that may have occurred during your shift, such as dropping a tray of glasses. 
• You cannot be held financially responsible for messed up orders, lost property, or customers walking out without paying unless you willfully or intentionally disregarded your employer’s interest. 

      Those are just a few examples of ways restaurants commonly attempt to recoup financial losses by taking money from employees.  For a more complete list, see Kentucky Wage and Hour Laws or consult with a lawyer. 

SO . . . WHAT SHOULD YOU DO?

      Please note that there are statutes of limitations in these cases that require you to file a claim within a certain time frame or else you lose your right to bring a complaint.  If you wait too long, your claim may be barred.  Therefore, it is crucial that you consult with a lawyer before time runs out. 

      In order to substantiate any claim you may bring, documentation will be crucial.  Keep a record of the days, shifts, and hours you actually work; the type of sidework you are required to perform; how long your sidework takes you to complete; how much money is deducted from your income; and where your money goes.  This information will be helpful down the road when evaluating whether you have a viable cause of action. 

      Lastly, if you have any questions about whether your rights are being violated, you should seriously consider consulting an attorney.  Many lawyers offer free consultations to determine if you have a valid legal claim.  For more information, please feel free to contact the experienced attorneys at O’Hara, Ruberg, Taylor, Sloan & Sergent.  We are here to help.

Authored by:  Megan E. Mersch