What to so if my employer has never paid overtime and failed to pay minimum wage when my tips didn’t cover it?

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What to so if my employer has never paid overtime and failed to pay minimum wage when my tips didn’t cover it?

I have worked for an employer for about 6 months (it is a small restaurant). They have never paid me overtime pay even though I have nearly always worked more than 40 hours per week. I also have only received $2.00 per hour for my hours worked, and they have never calculated my tips to compensate for the hours that I was not making any tips. Recently, I resigned, because a certain manager (coincidentally, he is the one in charge of pay roll as well) took $5 from another servers tip money, claiming the server had not told a table about their special offers. Is there something I can do for back pay? Do you think that they might settle out of court, and is it possible that I only need a lawyer to write them a letter demanding my earned pay or do these things usually drag out in court forever?

Asked on December 13, 2010 under Employment Labor Law, Tennessee

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

First, you have to be paid enough so that, when tipping tips into account, you make at least minimum wage ($7.75 per hour). Second, since you have to earn overtime (time-and-half) for all hours worked past 40, that means that if you work overtime, you have to earn enough, including tips, to cover the overtime wages as well as the base 40 hour per week wages. Third, managers may not take money out of the tip jars, etc. There are several possible wage and hour violations here, and you could receive back pay and potentially additional damages (and even possibly lawyer fees) in compensation. you should speak with an employment attorney, who can help you figure out what you claim might be worth and if it's worth a lawsuit, or instead you should file a wage and hour complaint with the government (less expensive, but slower and likely to get you personally less compensation).

M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

I would definitely seek some legal consultation in your area on the matter.  And try and find someone who is familiar with claims made in your given profession.  The general rules that apply to overtime pay and the like should apply across the board to all professions.  That should apply to how overtime is calculated as well.  But the pay rate and the issue as to the tips is calculated differently - obviously as most other professions do not have a tip issue.  So you need to make sure that someone knows the law with regard to you.  Now, do you have the necessary documentation needed to support your claim here?  Pay stubs that show your hours, etc.?  You may need to bring in some live testimony as well if need be.  Good luck.


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