“Finish up with your tables and then do your side work.” Most restaurant servers have heard their manager or restaurant owner say this countless times. In fact in the majority of restaurants and diners require servers to perform some side work at every shift.
On the surface this seems perfectly legit. After all, side work such as rolling silverware into napkins, stocking condiments and supplies, bussing tables and other cleaning tasks have historically been part of the server’s job.
Is it fair to require side work of tipped workers?
But when servers are making a wage based on receiving tips is it really fair to require them to do other chores, sometimes for an hour or two, while they making less than minimum wage and are prohibited from earning tips?
What the federal provision says
All restaurants must abide by the "tipped credit" provision under federal labor law. This provision requires employers to make up the difference when tips and wage combined do not meet the minimum wage standard.
In theory this means that tipped employees earning less than minimum wage would receive an enhanced hourly wage by the employer so that these tipped workers are at least making minimum wage during the times they are required to perform tasks that do not garner tips, such as side work.
Restaurants frequently violate the provision
However, restaurants have not always honored the tipped credit provision. A 2015 lawsuit alleged that a New York restaurant did not pay its workers overtime and “misappropriated” tips (the restaurant required the tipped workers to share their tips with managers during large events).
The lawsuit also claimed the restaurant failed to properly pay workers who worked over 10 hours per shift. Some restaurants require servers to share their tips with back of house staff, such as cooks, which is contrary to the Fair Labor Standards Act.
Restaurants, especially upscale, chef-centric houses across the country are working to create systems that even out this pay disparity. So far this has meant higher menu prices or additional tipping categories, such as for the kitchen staff, on receipts.
What is the solution? Should tipped servers be expected to perform side work duties at less than minimum wage? Are you willing to pay higher prices to ensure that back of the house staff are paid more?