The idea of someone taking our hard-earned wages strikes at the core of the average American. After all, we worked for and earned our paychecks. It should therefore come as no surprise that your employer cannot steal any of your wages. But many corporations and companies have become creative. They have found unique and clever ways to shortchange their workers and steal the wages left over. Nowhere is this more prevalent than in the restaurant industry. Restaurants have consistently targeted waiters and tricked them into illegally handing over their tips. And the worst part is, many of those affected do not even realize it. This article will examine common ways through which restaurants shortchange their workers and examine waiters’ rights under the Fair Labor Standards Act (“FLSA”).

The FLSA was passed to ensure that each and every worker receive the minimum wage as well as overtime pay when employees work for more than 40 hours a week. The only exceptions to this law, however, are restaurants. Although restaurants are required to pay their workers the minimum wage, they are allowed by law to take a “tip credit.” The tip credit allows a restaurant to pay its tipped workers $2.13 an hour rather than the standard $7.25 an hour, the idea being that the wages received plus the tips gained would provide waiters with the minimum wage. Nonetheless, restaurants have found illegal ways to try to circumvent the FLSA and shortchange their workers from the tips they are owed. The following are the most common ways through which restaurants shortchange their workers.

First, and foremost, do not let a restaurant get away with paying you less than the minimum wage. This sounds simple enough, but the tip credit restaurants have complicates things. Restaurants must pay you at least $2.13 an hour, but many people have the misconception that the tips they are given are a privilege, not a right. This is false. You have a right to your tips and those tips should provide you with at least the minimum wage. In other words, the wages of $2.13 combined with the tips received, must equal the minimum wage, and if they do not, then your employer must make up the difference. With that all in mind, restaurants cannot force you to work solely for tips, you must have that constant wage of at least $2.13. In sum, you are entitled to at least the minimum wage and anything less than that is a violation of the law.

Second, restaurants often try to skirt workers of their overtime. By law, if you exceed 40 hours of work a week, you must receive overtime wages, there is no way around that. But yet again, the tip credit will enter the scene to muddy the waters. Typically, overtime is the minimum wage ($7.25) multiplied by 1.5, which equals to roughly $10.88 an hour. However, restaurants are allowed to subtract the tip credit, which is $5.12, from your overtime wages. This means that you should be making at least $5.76 per overtime hour. Restaurants, however, will often try to pay their workers $3.20 per over time hour ($2.13 x 1.5). This is illegal. If you are seeing $3.20 on your paycheck, then your restaurant is shortchanging you of your overtime wages.

Third, restaurants like to take advantage of the tipping pool by distributing your tips to employees who do not regularly receive tips. A tipping pool is the practice of requiring all tipped employees to contribute a certain amount of their tips into a collective pool which is then distributed equally. Restaurants, however, like to use the tip pool to pay off non-tipped employees. This is illegal. Only employees who regularly get tips can collect from the tipping pool. This means that if your tips are going to cooks, kitchen workers, bussers (who do not work for tips), management, or even tipped employees who are not on shift, then your restaurant is breaking the law. Tips belong only to those who are actually tipped.

Lastly, restaurants have a tendency to use tips to pay off expenses. Do not let them get away with this. Tips are yours by right, not the restaurant’s to use freely. If you notice that your employer is using your tips to pay for new uniforms or job accessories, or to cover breakage or damaged items/equipment, or to make up for walked tabs, then they are breaking the law. Your tips are yours and yours alone; they are not meant to cover the restaurant’s mistakes and expenses. If you noticed any of the above occurring in your workplace, then you should seek representation from an experienced employment attorney and take back what was stolen from you. 

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Photo of Marcos De Hoyos Marcos De Hoyos

We asked Marcos D. De Hoyos, a Trial Attorney in the Houston office of Wiley Wheeler, P.C., to provide her sincere answers to a range of questions. After reading, you will be more more abreast with the understanding and competency that Mr.

We asked Marcos D. De Hoyos, a Trial Attorney in the Houston office of Wiley Wheeler, P.C., to provide her sincere answers to a range of questions. After reading, you will be more more abreast with the understanding and competency that Mr. De Hoyos brings.

  1. Why did you start practicing labor and employment law?

It’s fulfilling work. Employment law is one of the few areas of law where you can actually make a difference and an impact in the lives of people. One of the most rewarding feelings is knowing that the work I do each day has a meaningful impact in the community.

  1. Who is your favorite Supreme Court Justice?

Justice Oliver Wendall Holmes, Jr.

  1. What do you think is the most important part of a good case?

The lawyer. The client could have a stellar case, but without a good lawyer, that case isn’t going anywhere. You need a passionate, active, and knowledgeable lawyer to make the right decisions and ensure that the case, regardless of how viable it is, gets the shot it deserves.

  1. Besides Rob Wiley, P.C., what is the most interesting job that you have had?

While in college, I was a barista at a small, local coffeeshop, so while I argue your case, I can also make you a killer shot of espresso to boot.

  1. What skills do you value as an employment attorney?

The ability to adapt. As a lawyer, you’re constantly faced with situations that you didn’t expect or anticipate, and you have to learn to adapt to the situation as it unfolds. Persuasiveness and attentiveness are also a few skills I think are important to being successful in law.

  1. If you were not practicing labor and employment law what would you be?

In another life, I would most likely be an English or Philosophy professor.

  1. How do you market yourself differently than others?

I did not have the privilege of growing up in a family of lawyers. I was the only person in my family to earn a law degree, and I had to learn the law tooth and nail. I understand how complicated and daunting the law can be to someone who hasn’t studied it, so along with providing advocacy, I also like to make sure that clients understand the law, so that they aren’t left tackling their problems in the dark.

  1. What do you do when you’re not practicing law?

You can usually find me reading fiction or philosophy at the local coffee shop, going for a hike or run, or touring one of the many museums or art galleries in town.

  1. What’s your favorite legal TV show

Harvey Birdman, Attorney at Law.

  1. Who do you most admire as a lawyer?

The client. Taking on big companies and corporations is daunting, especially when you haven’t studied law. It takes courage to take a stand and to fight for what you are owed. I really admire that about my clients. They know going in that it’s going to be tough, but they choose to fight anyway, and that takes guts.

Marcos D. De Hoyos is a Trial Attorney in the Houston office of Wiley Wheeler, P.C. He graduated from Texas A&M University with a Bachelor of Arts degree in Political Science and Philosophy with a Minor in English. Mr. De Hoyos went on and received his law degree from Vanderbilt University.