Wages
Federal Law requires that you be paid $7.25 an hour unless you are a server or outside sales person. In Rhode Island and in Massachusetts those minimum hourly rates are higher.
Servers are also entitled to $7.25 an hour in wages if the amount that they make in tips does not bring their hourly wage to $7.25 an hour. Where a server works over 40 hours in a week, at hour 41, they are entitled to overtime, just over $2.00 an hour, but based on minimum wage or so called "time and a half" or $10.87 an hour with no tip credit applying.
Why would you submit a claim? If I bring a wage and hour claim on your behalf and I am successful, you are entitled to the wages that you have lost plus a premium payment, in most instances of double that amount, in addition to have your attorney's fees paid by your employer or former employer.
What about retaliation? Both State and Federal law prohibit retaliation against you because you have brought a wage action against your employer. Does that really prevent retaliation? In most instances, yes, but where it does not, there are other remedies available to you to protect your job and ensure your pay check. Call and speak with me about it. You will be amazed at what I can do for you.
Servers are also entitled to $7.25 an hour in wages if the amount that they make in tips does not bring their hourly wage to $7.25 an hour. Where a server works over 40 hours in a week, at hour 41, they are entitled to overtime, just over $2.00 an hour, but based on minimum wage or so called "time and a half" or $10.87 an hour with no tip credit applying.
Why would you submit a claim? If I bring a wage and hour claim on your behalf and I am successful, you are entitled to the wages that you have lost plus a premium payment, in most instances of double that amount, in addition to have your attorney's fees paid by your employer or former employer.
What about retaliation? Both State and Federal law prohibit retaliation against you because you have brought a wage action against your employer. Does that really prevent retaliation? In most instances, yes, but where it does not, there are other remedies available to you to protect your job and ensure your pay check. Call and speak with me about it. You will be amazed at what I can do for you.
WHAT STATE AND FEDERAL LAW REQUIRE THAT YOU BE PAID
In reality, there are very few workers who should not receive overtime benefits if they work over forty hours a week.
If you are not highly educated, and do not have the power to hire and fire other people or make major business decisions and not a business owner, you are probably entitled to overtime pay. There are exceptions - such as over the road truck drivers and outside sales people, but for the most part, if you think you are entitled to overtime pay, you probably are.
It is unlawful for any employer to:
- pay less than minimum wage (except in outside sales)
- require that you punch out for lunch unless you are allowed to have your lunch without continual interruption
- require that an employee actually perform any work unless they are on the clock
- use "bank time" to offset overtime payments that it owes an employee
- fail to pay a non-exempt salaried employee the 1/2 premium that is due if they work overtime
The list goes on and on. Similarly, an employer is subject to large penalties (and the employee entitled to a penalty payment) if the employer mischaracterizes the employee as an independent contractor. Most workers who are told when and where to report to a job each day, who have no real freedom in how they either perform their job or when they perform their job are actually employees.
Under both Rhode Island, Massachusetts and the Federal Fair Labor Standards Act what is clear is that when an employer fails to properly pay their employee, the officers of the company are individually liable for any wages due and required by law - to pay you a penalty that EQUALS AT LEAST 1 OR 2 TIMES THE AMOUNT OF THE WAGE YOU ARE OWED.
HOW DO THE WAGE ACTS APPLY TO SERVERS
If you are a server at a restaurant, you are entitled to be paid at least minimum wage for each hour that you work. The employer is entitled to a credit for any amounts of tips you earn towards the minimum wage payment. In other words, the employer is required to pay you $2.13 an hour, but may take a credit of up to $5.12 an hour for tips that you make to satisfy the Federal Minimum Wage. The State of Rhode Island requires that servers be paid $2.89 an hour and the Commonwealth of Massachusetts require that servers be paid $2.63 an hour. Accordingly, in Rhode Island, the employer is entitled to take up to $5.11 an hour toward minimum wage in an tip credit and in Massachusetts up to $5.37 an hour toward minimum wage. If you don’t make minimum wage for each hour that you work, under both State and Federal Law, than the employer is required to make up the difference.
In order to claim the tip credit, the employer is required to maintain a form or other record which states the amount of tips that you make as a server for every shift that you work. A tipped employee is generally someone who makes more than $30.00 a month in tips.
WHERE DOES IT GO WRONG WITH TIPPED EMPLOYEES
An employer can be in trouble with the Department of Labor and State Entities when:
- An employee does not receive sufficient tips to make up the difference between the direct (or cash) wage payment and the minimum wage and the employer fails to make up the difference.
- Where an employee receives tips only and is paid no cash wage, the full minimum wage is owed.
- Where an employer makes deductions for walk-outs, breakage, or cash register shortages which reduce the employee’s wages below the minimum wage, such deductions are illegal. Where a tipped employee is paid $2.13 per hour in direct (or cash) wages and the employer claims the maximum tip credit of $5.12 per hour, no such deductions can be made without reducing the employee below the minimum wage (even where the employee receives more than $5.12 per hour in tips).
- 4. Where a tipped employee is required to contribute to a tip pool that includes employees who do not customarily and regularly receive tips, the employee is owed all tips he or she contributed to the pool and the full $7.25 minimum wage.
OVERTIME AND THE TIPPED EMPLOYEE
Once a tipped employee works more than forty hours in a week, they are entitled to 10.88 an hour. The employer may not take a larger tip credit toward that sum than he could for a normal hour. In other words, the employer must pay the employee at least $5.76 an hour.
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