FAIR LABOR STANDARDS ACT. FACT SHEET #15 This is what governs tip regulations. Lawyers are your best bet for enforcing it.
Some information about the Fair Labor Standards Act
More than 100 million full and part time workers are covered under the Fair Labor Standards Act, which sets criteria for minimum wage, overtime pay, record keeping and child labor. The law generally applies to businesses that generate ore than $500,000 a year. However, if tipped employees swipe a credit card then they are covered under the FLSA as well. The Dept of Labor considers credit card transactions as interstate commerce. If an employee engages in interstate commerce, that employee is subject to the FLSA
WHOSE IN CHARGE THE STATE OR THE FEDS?
The DOL claims on its Website, that when Federal and State laws differ, the law that offers more protection to the employee should prevail. But States will not necessarily enforce Federal Law or apply the same protections as the FLSA. Peter Wingate, the deputy director of CO Division of Labor stated, “As with many areas of wage and hour laws, states are permitted to have stricter or looser standards than those provided in FLSA, and when both laws apply to the employer, the stricter law prevails.” Employees will not necessarily be able to assert those rights in state courts. Many state laws that do not clearly deal with tip pools restrictions and what makes them valid are also subject to a staff wage administrators interpretation which may vary.
When states do not make their own laws, then federal law applies. For example, most of the southern states do not have minimum wage laws; therefore servers automatically fall under the federal sub -minimum wage of $2.13 per hour. Another example would be employers deducting credit card processing fees from a servers credit card tips. While some states have written clear wage orders that prohibit this practice, others have not.
Casinos that operate on Indian land are subject to Federal wage laws. Although sometimes these casinos and resorts can offer higher wages for servers, it is only the federal wage and hour laws that can be enforced.
Wage Violations. Who do you turn to?
STATE WAGE AND HOUR
Go to this agency, if the state has laws that offer equal or more protection than the Federal DOL. California, for example has great, clear cut state laws that clearly display protections for tipped employees. Go on their websites and check out the statutes online. Or call up and ask to speak to a supervisor for clarification of state law. Yes, do a little homework! Most states list their laws online and accessing this information is now much easier than ever before. State Wage & Hour will most likely respond faster to your wage claim than the Fed DOL
If you work for an employer with less than 20 employees and /or who does not use credit cards you might not be protected under FLSA law. You would only be able to assert your rights under a state court. State Wage & Hour will most likely offer a faster response to your wage claim than the Feds.
FEDERAL WAGE AND HOUR
Go to the Feds, when the state law Conflicts, or does not offer the same equal protections as the Federal law. The Federal Law is what enforces the FAIR LABOR STANDARDS ACT. You will also have to turn to the FED DOl If you live in a state that does not have minimum wage laws or you work on tribal lands in a casino. Note :The Federal DOL is will not automatically process your claim. They might decide not to take your case and if they do, the process can takes months. You can also assert your rights under Federal Law with an attorney.
When you want to enforce the local city minimum wage ordinance. For example, in Santa Fe the minimum wage is $10.25. Under its provisions tipped employees must at least earn $100 a month in tips in order for a employer to take a tip credit. In addition, tips plus the base cash wage must equal the city mandatory minimum wage of $10.25. Looks good on paper, very difficult for tipped employees to enforce in reality. Be aware that while the city may mandate a ordinance, they may not have the staff available to enforce it. Asserting rights under city ordinances can be down right tricky and you may find yourself looking towards the state for more immediate protection.
Go to an attorney when there is a group of you ready to file a claim on the same violation or when you don’t want to rely on Federal Wage agents. You can hire an attorney to enforce the FLSA. They may be much more efficient than the Federal Agency and allow you to pay them out of the settlement you are awarded. A
In a New York times article, (May 12,2007) several restaurant workers said they turned to lawyers rather than the federal or state labor departments because government officials often respond more slowly. Also, in New York, the Labor Department usually seeks just two years of back wages to be paid to employees whose cases it presses, while lawyers often file claims covering six years of back pay.
And in addition, lawyers just might do a better job. Kutz and Meyer report “The Department of Labor’s Wage and Hour division, which is responsible for enforcing these laws, recently was criticized for leaving “low wage workers vulnerable to wage theft” as a result of “inadequate investigation and poor complaint intake process”. (2009) Yes, its a confusing mess out there. When you don’t have time to make a treasure map and weave through the web of laws, hiring a lawyer may be worth it. Yes, asserting your rights has never been harder and will require loads of patience and determination. But what will happen if no one does it. What then?