What happens if the tipped employee doesn't earn the other half of minimum?

I'm a tipped employee that was recently discharged after four years, two as manager then demoted when the bosses daughter came on board. She fired me while her dad was on vacation for events that took place while I wasn't even working. I've filed for unemployment and they are telling me that after 4 years, I've not made enough money to obtain unemployment. Aside from the potential lawsuit with the wrongful discharge, I now can't get assistance. According to what was claimed on tips it's not close to minimum, let alone tips were included in year to date but not taxed. So confused. Which figure is correct to give them for unemployment.

1 answer  |  asked Sep 11, 2009 8:37 PM [EST]  |  applies to Ohio

Answers (1)

Neil Klingshirn
For unemployment compensation purposes, your wages are what you actually earned, including tips. If your employer failed to report your tips to avoid paying its share of the taxes on them, you can submit proof of what you actually earned. You need to appeal the unemployment compensation decision denying your benefits, however, to preserve the opportunity to submit proof of what you actually earned.

If you did not earn enough to cover the minimum wage, including the one-half of your wage that should have come from tips, then you can file suit to recover three times the amount of the unpaid minimum wage for the last three years, plus your attorneys fees.

If you received more compensation than your employer reported, but your employer under-reproted your wages to avoid paying taxes on them, I suspect that your employer will be stuck with the number that it reported and will not be allowed to challenge it as low. So, calculate your hours worked, multiply it by the minimum wage in effect for the last three years (it has gone up each year) and multiply it by three.

Send me an email (neil@fklaborlaw.com) and let me know how much you are owed. I am also interested in knowing whether other employees were paid less than the minimum wage as well.

posted by Neil Klingshirn  |  Sep 12, 2009 07:45 AM [EST]

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