20% Limit on Sidework for Servers and Bartenders - You Have Rights!
In Kentucky, tipped restaurant staff (like servers and bartenders; not cooks, dishwashers, hostesses, etc.) can be paid what is called the “tip credit wage.” That means, because servers and bartenders receive tips to supplement their income, the employer does not have to pay the standard $7.25 minimum wage. Right now, the tip credit wage in Kentucky is $2.13 per hour.
This abysmally low salary may not be an issue if the restaurant-employer otherwise follows the rules. Unfortunately, it is incredibly common for restaurants to violate other areas of labor law, taking away from workers’ time earning tips.
If you are a server or bartender, it is certain you are familiar with sidework. “Sidework” includes all the tasks that waitstaff perform other than directly serving their guests. Types of sidework include making tea and coffee, sweeping floors, refilling condiments, rolling silverware, cutting lemons, wiping down tables, etc. These are commonly classified as “related” sidework tasks because they are indirectly tip-producing. Related tasks likely impact how much of a tip the server receives. (For example, if the guest doesn’t have any ketchup on his table or the floor is covered in food remnants, the guest is likely to take those shortcomings into account when tipping his server.) Other types of sidework are “unrelated,” meaning that the work is not tip-producing at all. Unrelated sidework could include cleaning bathrooms, washing windows, making salads or bread, cleaning the kitchen, washing dishes, taking out the trash, etc. (One would presume a guest would prefer his server not be cleaning and stocking the bathroom while serving dinner - very gross - but it happens, and the server is likely not being tipped any extra for making sure there is toilet paper in the bathroom.)
[As a sidenote, unrelated sidework should arguably be paid at the full minimum wage ($7.25/hr in Kentucky) regardless of how much time is spent on those tasks. These “unrelated” tasks, in my perspective, should never be performed by servers because they do not produce tips, and, therefore, the server should not be paid at the tip credit wage ($2.13/hr in Kentucky). This is a separate claim from violating the 20% rule and outside the scope of this article. Contact me for more information if you have additional questions on this point.]
These sidework duties are incredibly common in the restaurant industry. They occur to such an extent that some servers spend the majority of their shifts doing sidework rather than actually interacting with the customers. And that right there is where the restaurant-employer finds itself in hot water.
Recently clarified by the Department of Labor, a tipped employee (like servers and bartenders) cannot perform more than 20% of his/her time on sidework. The rationale behind this rule is simple - servers cannot be earning tips and supplementing their measly $2.13/hr if they are busy rolling silverware or sweeping the kitchen. Time away from guests means less money for waitstaff, although it is a windfall to employers. Of course the employer would like to pay $2.13/hr for janitorial work rather than the $7.25 minimum wage! Rather than hiring a dishwasher at $7.25/hr, the restaurant just has the server do it. It saves the restaurant a bunch of money, and the server probably doesn’t know that his/her rights are being violated.
If a server or bartender is spending more than 20% of his/her time on sidework, legal relief is available. Some employees may be afraid to come forward for fear of employer retaliation. If your employer retaliates against you for trying to enforce labor laws, you may have an entirely separate legal claim that could entitle you to additional compensation. If you or someone you know has a claim, or if you think you have a claim but want to be sure before you complain to your employer, contact us today. We offer free consultations and can guide you through this process so that you can be confident about what protections are available to you. We can help you enforce your rights.
Author: Megan Mersch Fields, Esq. - 2016 Super Lawyers Rising Start, Labor and Employment Law