When factoring the difference when not making the min. wage as a tipped employee is this done daily?

For example: you work as a bartender and in the course of a shift you do not make, with tips, what amounts to to Ohio minimum wage and are being paid half the min. wage. Is the employer responsible for the balance based on a per day, week, or pay period?

2 answers  |  asked Dec 31, 2009 07:59 AM [EST]  |  applies to Ohio

Answers (2)

Neil Klingshirn
I think you also asking the period on which the minimum wage is calculated to determine whether or not tips covered 1/2 of a tipped employee's earnings for that period. That should be done each workweek. That is, the FLSA says that the minimum wage must be paid to any employee "who in any workweek" qualifies for it.

As an example, suppose you work 20 hours in week one and 40 hours in week two. Further suppose that in both weeks you receive $100 in tips.

In week one, your compensation should be 1/2 the minimum wage (now $7.30 in Ohio) paid by the employer, or $73, plus $100 in tips, or $173. Since this exceeds the minimum wage of $146 ($7.30 x 20) you keep the rest of the tips.

In week two, your employer should pay $146 in base pay. It gets a credit for the $100 in tips, but will still owe you an additional $46 to reach the total minimum wage owed for week two (($7.30 x 40) - ($146 + $100). I do not believe that the employer can apply the $27 overage in tips from week one as a credit to week two.

posted by Neil Klingshirn  |  Dec 31, 2009 11:22 AM [EST]
Bruce Elfvin
The rules for 'tipped' employees for the Ohio minimum wage law are borrowed from the FLSA. Even though these have been revised the calculations will probably be done on a pay period basis for determining compliance. If there is a question on this you should keep track of the amounts on a daily basis for a period of time and the pay periods as well and then see an employment attorney near you to discuss the issue. Having the facts and the law in front of you will make this an easy answer.

You can select an employment attorney near you at www.oelasmart.net/directory

posted by Bruce Elfvin  |  Dec 31, 2009 08:23 AM [EST]

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