If an employer has a waitress come in an hour early to do side work, then makes the waitstaff clean the restaurant all day while they wait tables and while they are dead with no business, is this acceptable?
– Sara, Server, Guntersville, Ala.
While no one likes cleaning and side work, most of what you describe sounds like a normal part of the job and normal practice. If your employer takes the tip credit, provided you are earning full minimum wage after tips, you can be expected to do nontipped work up to 20% of your time. In addition, many tasks like cleaning (for example, wiping tables) during the course of serving would be seen as incidental and necessary to the job.
That said, if you are cleaning instead of serving tables and that cleaning time is greater than 20%, you may be crossing over into the category of a Dual Employee, which is a different scenario.
According to the U.S. Department of Labor:
“Dual Jobs: When an employee is employed by one employer in both a tipped and a nontipped occupation, such as an employee employed both as a maintenance person and a waitperson, the tip credit is available only for the hours spent by the employee in the tipped occupation. The FLSA permits an employer to take the tip credit for some time that the tipped employee spends in duties related to the tipped occupation, even though such duties are not by themselves directed toward producing tips. For example, a waitperson who spends some time cleaning and setting tables, making coffee, and occasionally washing dishes or glasses is considered to be engaged in a tipped occupation even though these duties are not tip producing. However, where a tipped employee spends a substantial amount of time (in excess of 20% in the workweek) performing related duties, no tip credit may be taken for the time spent in such duties.”
It sounds like the bigger problem may be one of accurately forecasting volume and adjusting labor accordingly. While your employer may think they are doing you a favor by having you clean when you don’t have tables, rather than sending you home or having you stick around in case it gets busy later, it may be setting them up for bigger problems. Another way to go would be to pay full minimum wage or higher for this work.
Keep in mind that local regulations may vary. As always, consult with your restaurant association and attorney.
More on compensation for side work here.