Tipped employees have additional protections the Federal Fair Labor Standards Act (FLSA) in Florida. As of May 2005, the Florida Constitution, (Article X, §24), requires employers to pay Florida workers a higher minimum wage, compared to the federal minimum wage required under the federal FLSA.
Additionally, each year, the Florida minimum wage is subject to annual increases based on inflation. Notably, for tipped employees, employers can receive a $3.02 tip credit against Florida minimum wage. Thus, as the Florida and Federal minimum wages increase, so will the direct wage employers must pay to their tipped employees.
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Tipped employees are those who customarily and regularly receive more than $30 a month in tips. They include waiters, bellhops, waitresses, busboys and bartenders. Tipped employees are generally entitled to overtime pay when they work more than 40 hours in a week.
If an employee's tips combined with the employer's cash wage of $2.13 an hour do not equal the minimum hourly wage (currently $8.10 per hour), the employer must make up the difference. In Florida, an employer must pay a tipped employee a minimum wage of $5.08. an hour. If the tipped employee’s wages and tips together do not meet the Florida minimum wage of $8.10 an hour, the employer must make up the difference.
The employer may consider tips as part of wages, but such a wage credit must not exceed 50 percent of the minimum wage.
The employer who elects to use the tip credit provision must inform the employee in advance and must be able to show that the employee receives at least the minimum wage when direct wages and the tip credit allowance are combined. Also, employees must retain all of their tips, except to the extent that they participate in a valid tip pooling or sharing arrangement.
Employers like restaurant and bar owners are permitted to pay their wait staff less than the minimum wage if the wait staff receives tips. This practice is referred to as a "tip credit." However, employers cannot legally claim a tip credit if they require the employees to share or “pool” their tips with employees who do not customarily receive tips, such as managers, dishwashers, or the chef.
In certain situations, employers who employ wait staff are permitted to pay their wait staff less than the minimum wage (Florida minimum wage) for each hour worked where the employee receives tips (tipped employees). In other words, the employer gets a "tip credit." Sometimes, an employer will not be permitted to claim a tip credit if it requires its employees to share their tips with employees who do not customarily receive tips, such as the restaurant manager or the chef.
First, the employee must be considered a “tipped employee.” This is not hard for some employees like waitresses, waiters, and bartender. Second, the employer must tell the employee of the statutory tip credit before it is taken and allow the employee to retain the tips provided. Thus, even if the employee received tips over the federal minimum wage, but the employer failed to tell the employee of the statutory tip credit it can still violate the FLSA.
If servers are required to pool their tips with employees who do not regularly receive tips (like management) the tip credit is destroyed for the employer and the employer must pay back those who contributed to the pool for the tips turned over to improper employees.
If the employer participates in the tip pool, the tip credit will also be destroyed.
As the held in Barcellona v. Tiffany English Pub, Inc., 597 F.2d 464 (5th Cir. Miss. 1979), if no agreement exists transferring ownership of tips, the tips are by law the property of the waiters who received them, and those tips can be credited towards no more than 50 percent of the minimum wage.
Tipped employees may share or pool tips, but only among those who customarily and regularly receive tips. In other words, servers are not to share or pool tips with management.
Tip pooling cannot be required when an unreasonable percentage of tips are required to enter the pool. Anything over fifteen percent (15%) of an employee’s tips are considered to unreasonable.
Under federal law, workers who earn tips, such as waiters and waitresses, must be paid at least $2.13 per hour, as long as:
Some states have their own rules regarding minimum wage and tipped employees. In these cases, the employee should be paid according to the provisions that provide the greater benefits. For example, in Florida tipped employees must be paid a least $5.08 an hour and their wages and tips must equal at least $8.10 an hour.
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