I work at a 24-hour restaurant. Sometimes they come to clean the hoods from 2-4 a.m., and I am required to be there to make sure everything is OK—but can’t make tips until they leave. Should I be getting full minimum wage for that time?
– Server, Easley, S.C.
For employers taking the tip credit, the question of hours when an employer should be paying full minimum wage has been a controversial topic. For example, tipped employees usually understand that certain tasks such as side work, like setup or cleaning up after a shift, are necessary tasks performed in service to tipped wages. But how much is too much? Wiping tables after service or making roll-ups for the next day is one thing, but vacuuming the dining room? Shampooing the carpets? Over the years of writing this column, this question has come up frequently: Where is the line between necessary nontipped duties at tipped minimum wage and work performed by tipped employees that should be compensated at full minimum wage or higher?
According to the Wage and Hour Defense Blog, in November of 2018, the Wage and Hour Division of the U.S. Department of Labor issued an opinion letter on this topic, concluding that, “Under federal law, there is no limit on the amount of time a tipped employee can spend on side work while still receiving a tipped wage so long as the employee also performs the normal tip-generating activities of the role at or around the same time” (emphasis added).
The Department of Labor’s specific language states, “An employer may take a tip credit for any amount of time that an employee spends on related, non-tipped duties performed contemporaneously with the tipped duties—or for a reasonable time immediately before or after performing the tipped duties—regardless whether those duties involve direct customer service. … For example … cleaning tables or counters after patrons have finished dining; preparing tables for meals, which encompasses setting up items such as linens, silverware, and glassware; and stocking service areas with supplies such as coffee, food, tableware and linens. … An employer may take a tip credit for any amount of time a waiter or waitress who is a tipped employee spends performing these related duties” (emphasis added).
For employers, and in your case, the key question is whether the duties you are asked to perform (supervising the hood cleaners) are related and performed at or at about the same time as your tipped work.
As often happens, these problems are a case of unclear expectations. My advice for employers is to define in the employee manual those side work tasks expected of tipped employees that are indeed related to and performed proximate to the tipped work. There should also be a note that the list in the manual is not an exhaustive one.
Keep in mind that state and local laws are often stricter than federal. As always, check with your attorney and restaurant association to be sure your practices are compliant.
More on compensation for nontipped duties here.