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How much side work is too much?

rolling silverware

Question:

Is it right to make servers scrub bathrooms and toilets, sweep the dining room floor, clean windows and dust pictures on top of normal server duties for the $2.13 tipped minimum wage? I thought tips were for service, not to be cleaning crew. 

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Answer:

Your question raises two important issues that restaurants are struggling with:

  1. How much side work is too much?
  2. At what point should an employer not be claiming the tip credit (paying full minimum wage)?

In previous columns, I’ve addressed whether employers taking the tip credit can pay that wage for employees doing incidental side work such as cleaning, setup, break down, rolling silverware, polishing glassware and so on. In general, the answer is yes: The magic number seems to be about 20% of your time, and the law is pretty clear:

Reg 531.56(e) permits the taking of the tip credit for time spent in duties related to the tipped occupation, even though such duties are not by themselves directed toward producing tips (i.e. maintenance and preparatory or closing activities). For example a waiter/waitress, who spends some time cleaning and setting table, making coffee, and occasionally washing dishes or glasses may continue to be engaged in a tipped occupation even though these duties are not tip producing, provided such duties are incidental to the regular duties of the server (waiter/waitress) and are generally assigned to the servers. However, where the facts indicate that specific employees are routinely assigned to maintenance, or that tipped employees spend a substantial amount of time (in excess of 20 percent) performing general preparation work or maintenance, no tip credit may be taken for the time spent in such duties.”

In your case, it does sound like the cleaning requirements may be routine, may not be incidental to the tipped occupation (serving) or may be in excess of 20%. As often happens in this column, at the heart of your question is a difference in expectations—you expect not to do heavy cleaning or, when asked, expect to be paid full minimum wage or higher. Your employer expects this cleaning to be part of your work and not a sufficiently substantial commitment to require full minimum wage.

My advice to the restaurant is to do an analysis of the cleaning required. For a variety of reasons—job satisfaction and retention, food safety (food servers routinely cleaning bathrooms if they do not have a good place to shower and change clothes is not a promising practice), and efficiency (someone hired to clean may be faster and better at it than someone hired to cook or serve), I would recommend hiring better for the task at hand.

It sounds like you may have cause to complain but certainly have cause to have a frank conversation with your employer. As always, laws vary so check with your attorney and restaurant association. More on the topic here.
 

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