Vision Payroll

This week’s question comes from Tony, a restaurant owner. I read that restaurants should obtain a signed tip credit notice from all tipped employees. What is the impact of not providing a tip credit notice? Answer: Employers who do not provide a tip credit notice are not allowed to take the tip credit.

Minimum Wage for Tipped Employees May Be Lower

Current federal law requires most workers be paid a minimum wage of $7.25 per hour when an employee works forty hours or less in a week. For tipped employees, the minimum cash wage is $2.63 per hour as long as the employee receives enough tips to bring the hourly wage up to at least $7.25 per hour. Some states may have higher minimum wage rates that must be followed in that state. See our Minimum Wage Chart for further information.

Under FLSA, Notice Is Required to Take a Tip Credit

Under §3(m) of the Fair Labor Standards Act (FLSA), a tip credit is not allowed, “with respect to any tipped employee unless such employee has been informed by the employer of the provisions of [the tip credit].”

Employers Must Pay Full Minimum Wage

Employers who do not provide a tip notice and therefore are not allowed a tip credit must pay the full hourly minimum wage of $7.25 per hour the state minimum wage if it is higher than $7.25 per hour.

Contact Vision Payroll Today

Contact Vision Payroll today if you have further questions on the tip credit notice.

On April 5, 2011, the US Department of Labor (DOL) issued a final rule that affects employers who have tipped employees. The rule amended a Fair Labor Standards Act (FLSA) regulation. All employers are required to provide certain required information to all tipped employees in either oral or written form.

Signed Written Notice Would Document That Requirements Were Met

The DOL commented although a written notice is not required, “employers may wish to do so, since a physical document would, if the notice is adequate, permit employers to document that they have met the requirements in section 3(m) and the Department’s regulations to ‘inform’ tipped employees of the tip provision.”

NRA, CSRA, and NFIB Have Filed Suit over Tip Credit Regulation

The National Restaurant Association (NRA), Council of State Restaurant Associations (CSRA), and National Federation of Independent Business (NFIB) have filed suit over the new final rule. According to the NRA:

The Final Rule followed a notice of proposed rulemaking (NPRM) that the DOL published in 2008 that would have made only technical and non-substantive changes to the tip credit notice regulation. Nothing in the 2008 NPRM put the public on notice that the DOL was contemplating significant changes to the tip-credit notice requirements.

Vision Payroll Recommends Restaurants Implement a Written Notice Policy

The NRA has provided sample documents that restaurants and other who have hired tipped employees may download. Vision Payroll recommends that employers review the documents with legal counsel and implement a written notice policy as soon as practicable.