Rob Wiley
Rob Wiley is a Texas employment lawyer.

Recently I was asked, “Why is it that servers are bagging up online orders for Uber, DoorDash, etc. and only getting paid $2.13 per hour to do so?” It certainly doesn’t seem very fair, but is it illegal? Like most things in law, the answer is maybe. This is an example of what happens when old rules about restaurants collide with modern developments.

A restaurant can break the law if waiters aren’t paid $7.25 for all hours worked in a workweek.  Waiters are entitled to minimum wages just like everyone else. But a restaurant can use tips to supplement the $2.13 to meet the $7.25 requirement. However, under the law, this math is done “per workweek.”  Here’s the math: take the total amount paid in a week (wages and tips) and divide that by the total number of hours worked.  If that number is less than $7.25, the employer is breaking the law. For example, Susan worked 32 hours, was paid $68.16 by the restaurant and got $160 in tips. That’s $228.16 total divided by 32, which comes to $7.13. That’s less than minimum wage for the week. Seems small, right, but the damages for this kind of violation could be thousands of dollars for Susan, depending on how long she worked for the restaurant.

A restaurant can break the law if it misclassifies a bagger as a waiter. If all you’re doing is bagging up food, you’re not a waiter anymore. While waiters can be paid $2.13 plus tips, a bagger would be entitled to $7.25 directly from the restaurant. If bagging is your primary job duty – instead of waiting tables – then the restaurant is breaking the law. In fact, if you’re being paid $2.13 plus tips and you’re only a bagger, the restaurant is breaking the law regardless of how much you get paid in tips.

A restaurant can break the law if it makes waiters tip-out to full time baggers.  If you are a waiter and you have to tip out to baggers, that’s illegal too! Baggers are noncustomer-facing employees, and therefore restaurants are not entitled to use tips to satisfy the minimum wage requirement if someone is a bagger. Workers who just bag food have no business taking tips from waiters, the restaurant must pay them directly for their work. Remember, non-waiters like cooks, janitors, dishwasher, managers, and baggers have no right to your tips – that’s wage theft.

You are entitled to tips from delivery drivers and pick up customers.  If delivery drivers or pickup customers provide tips for the restaurant, these tips must be shared with waiters bagging food. Although it seems like an uncommon practice, there are a number of forums on the internet that discuss tip-outs by drivers to restaurants.  These tips would follow the general rule for tips: those tips belong to the waiter. Similarly, if a customer who picks up something ordered on DoorDash and leaves a tip, that tip goes to the waiter. Restaurants are known to steal tips, don’t let this happen to you.

The person asking the question has a good point.  It should be illegal to make waiters do non-tipped work. Restaurants exploit waiters by making them set up and break down restaurants, roll silverware in napkins, refill condiments, and other duties for which they aren’t tipped during downtimes. All of this work decreases the amount of time spent getting tips, and means waiters are doing work for $2.13 per hour – slave wages. Under current law, it’s not the hour that counts, it’s the total pay per workweek.

 

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Photo of Robert J. Wiley Robert J. Wiley

Robert J. Wiley is the founder and owner of Rob Wiley, P.C.  Mr. Wiley is board certified as a specialist in labor and employment law by the Texas Board of Legal Specialization.  Mr. Wiley graduated with honors from Tulane Law School and received…

Robert J. Wiley is the founder and owner of Rob Wiley, P.C.  Mr. Wiley is board certified as a specialist in labor and employment law by the Texas Board of Legal Specialization.  Mr. Wiley graduated with honors from Tulane Law School and received his undergraduate degree from Vanderbilt University.

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

I cannot imagine doing anything other than the job I have now.  Maybe I would be a union leader or work for a nonprofit.

2. What skills do you most value as an employment attorney?

Being an employment lawyer, you have to have two specialized sets of skills.  On one hand, you have to be able to draft motions in court that are extremely complicated and technical.  On the other hand, you have to turn around and be able to explain these complicated and technical legalities to individuals who are not lawyers.

3. When did you decide to become a lawyer?

I think that I have always wanted to be a lawyer.  My parents would tell you that I seemed predestined to be a lawyer.

4. What is the biggest mistake you see clients make?

Not hiring a lawyer!  Whether you’re complaining to the EEOC, going to court, attending a hearing with the Texas Workforce Commission unemployment division, or anything else legal, you really need to hire a lawyer.  Even if you do not hire my law firm, you need to get a lawyer to represent you.

5. What is your favorite employment law?

My favorite employment law is Title VII of The Civil Rights Act of 1964.  This law, passed over fifty years ago, remains one of our most important laws today. The Civil Rights Act set the stage for the Americans with Disabilities Act, the Age Discrimination in Employment Act, and numerous other employment laws protecting individuals from discrimination.  The Civil Rights Act was also an act of bipartisanship.  I think that our current government could learn a lot from the determination of our government’s leaders in the 1960’s.

6. What one employment issue would you argue before the Supreme Court?

I would argue that arbitration agreements are unconstitutional because they deprive citizens of the right to a jury.  I believe that the right to a jury, enshrined in the Seventh Amendment, is just as important as freedom of speech, freedom from unlawful search and seizure, or the right to bear arms.

7. Who is your favorite Supreme Court justice?

Ruth Bader Ginsburg.  I hope she never resigns and she lives forever.

8. What would you say to HR of a company about how to treat employees?

Treat employees who bring heartfelt complaints with dignity.  Try to find truth, rather than inevitably siding with management over subordinate employees. Human Resources has the ability to defuse a potential lawsuit by doing the right thing.  Retaliating against the employee because they complain about discrimination or ill treatment will only make matters worse.

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

While I was an undergraduate in Nashville, I briefly worked as a tour guide.

10. What is the secret to your success?

The attorneys who work for me.