FAQs About Tipped Employees and the (Vexingly Complicated) Tip Credit

One of the most complicated aspects of federal and state minimum wage laws for tipped employees in Oklahoma is the “tip credit.”

A “tipped employee” under the wage and hour laws is any worker who receives tips as part of one’s regular income — restaurant waiters and waitresses, bartenders and bar servers, etc. Many tipped employees do not understand the laws, which are designed to make sure they receive the federally mandated minimum wage and that they are allowed to keep the tips they earn.

Blog Series on Tipped Employees: Part 2

One big factor that makes the rules hard to understand is the tip credit, which employers can use to reduce the amount of wages they would otherwise have to pay. The tip credit is allowed under the law, but some unscrupulous employers use the tip credit to take advantage of uninformed workers.

In my previous blog post, I answered “Some FAQs About Tipped Employees and the Minimum Wage,” including:

  1. Who is considered a tipped employee under the law?
  2. What is the minimum wage for a tipped employee?
  3. Are any employers/employees exempt from the minimum wage law?

Now let’s zoom in on the tip credit. After I have explained the basics, in my next post I will discuss: “Ways Some Employers Are Ripping Off Their Tipped Employees.”

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How the Tip Credit Works

The tip credit is based on the idea that tips are a big part of a tipped employee’s wages, but that the employer is still obligated to make sure employees earn the minimum wage, which is $7.25/hour under federal and state law.

To make that happen, employers are required to pay tipped employees a base pay. In Oklahoma, the base pay is $3.625/hour (half the minimum wage). In satisfying the minimum wage requirement, employers can take a tip credit on some or all of the remaining $3.625/hour, depending on how much in tips an employee earns.

If the employee earns enough tips to cover the rest of the minimum wage, the requirement is considered met. If the tips are not enough, the employer can take the tip credit up to the amount of actual tips, but must pay the remainder to make sure employees earn the minimum.

1. Is the tip credit calculated by the hour, the day or the week? An employer totals an employee’s tips for the entire work week and then averages the tip income per hour to calculate the tip credit.

2. How does the employer know how much in tips an employee has received? A worker who earns at least $20 in tips during a calendar month must report the tips to the employer by the tenth day of the next month. Employers need the tip reports in order to calculate tip credits, and employers must also include tips in calculating withholding.

An employer must establish a system that results in employees reporting their tips. Many employers use electronic reporting systems. The IRS provides optional forms for a tipped employee to use to keep track of tips and to report tips to employers.

3. Are there limits on the workers and kinds of work for which an employer can apply the tip credit? An employer can take a tip credit only on the wages of employees who are truly “tipped employees” as defined by law. If a worker does not usually receive tips but gets some nice tips during the holidays, the employer must still pay the minimum wage; the tips cannot be counted to reduce the wage the employer pays.

Also, if an employer assigns a worker to spend more than 20% of one’s work time doing work that does not generate tips, a tip credit cannot be applied to the untipped work. The employer must pay the full minimum wage for that work.

4. Is an employer required to explain the tip credit to employees?

An employer who intends to take the tip credit must notify tipped employees, informing them of the following:

a. How much the employer is paying in base pay. In Oklahoma, the base pay must be at least $3.625/hour, but it can be more. However, an employer cannot fluctuate the base pay from week to week based on the amount of tips collected.

b. How much of a tip credit the employer will claim. That is a simple calculation: the minimum wage of $7.25 minus the base pay set by the employer. For example, in Oklahoma, if the employer pays the minimum base pay of $3.625/hour, another $3.625 can be claimed in tip credit. A higher base pay means a lower tip credit.

c. The employer must inform employees that the tip credit can never exceed the amount of the actual tips. If the actual tips are not enough to achieve the minimum wage, the employer can take the tip credit but must pay the remainder to satisfy the minimum.

d. The employer must also inform tipped employees that tips belong to the workers who earned them.

If an employer fails to provide written or oral notification of these points, the employer cannot use the tip credit and is required to pay the $7.25/hour minimum wage.

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Get a Consultation With Our Employment Law Attorneys

Are you a tipped employee in Oklahoma who is not receiving the minimum wage you are entitled to under federal and state laws? Are you being allowed to keep the tips you earn? Are you being paid time and a half for overtime?

If you have a good claim, you could receive compensation for your unpaid wages, unpaid overtime, and/or confiscated tips, as well as other harms and losses you experienced because your employer was skirting the law.

Contact Hasbrook & Hasbrook by telephone (866-416-4737), email (cth@hasbrooklaw.com) or use our website contact form: Contact Us.