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How the Fair Labor Standards Act treats tipped workers

Workers in California and around the country can generally pursue legal remedies under the Fair Labor Standards Act if they are paid less than the federal minimum wage or denied overtime pay after working more than 40 hours during a workweek. Employees who are paid a fixed rate may be able to substantiate claims made under the law by introducing documents such as pay stubs and time cards in court, but matters can become more complicated when workers earn part of their income in tips.

The FLSA differentiates between duties that generate tips and those that do not, and employers are required to pay workers who perform two or more jobs at least the minimum wage for all the non-tipped duties they perform. However, this rule does not apply to individuals in tipped positions who perform what is referred to a side work. Examples of side work include restaurant servers setting up their workstations and crews clearing tables.

Two limitations have been put in place to prevent employers from taking advantage of the side duties exemption. The first states that workers should be paid the federally recognized minimum wage for all duties that are not incidental to tipped work. Such duties could include cleaning restaurants or kitchens. Workers must also be paid at least the minimum wage when performing their assigned side duties accounts for 20 percent or more of their workweeks. While the 80/20 rule is found in the Department of Labor's Field Operations Handbook rather than the FLSA, it has been recognized by the U.S. Courts of Appeals for the 7th and 8th Circuits.

Attorneys familiar with employee rights cases may study court decisions dealing with wage and hours complaints carefully, and they could use this information to help their clients to gather the documents that will be required to support such claims. Accurate records of the hours worked and the compensation received by employees may be difficult for employers to refute in court.

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