By Andy Volin
Tipped employees can be paid an hourly rate less than the minimum wage, as long as their wages, along with their tips, are at least the minimum wage. Colorado’s Federal Court just rejected a claim brought by a restaurant server who argued a minimum wage violation. The server’s theory was that her work time should be split into two jobs. One job counted as tipped work, such as actually serving food to customers. However, another aspect of her work, such as rolling silverware and cleaning tables, should have been considered a second, separate job that was not eligible for the lower tipped rate.
This “dual job” argument has some support in the DOL’s Field Operations Handbook. The Court concluded the handbook was inconsistent with the statute and regulations with respect to this particular situation and refused to rely on it. Instead, the proper analysis was to compare the server’s total weekly earnings, including tips, against minimum wage for the hours worked as a server. Because the total was more than minimum wage, there was no violation. Romero v. Top-Tier Colorado, LLC dba Huthot Mongolian Grill, No. 15-CV-02101-MEH (D. Colo. Feb. 9, 2016).