Requiring a Bartender to Perform Non-tipped Side Work May Violate the Fair Labor Standards Act (FLSA)

Does a Bar or Restaurant Have to Pay a Bartender Minimum Wage for Non-tipped Side Work?

The bar and restaurant industry generates $799 billion in annual sales, and employs almost 15 million people. With over 1 million bars and restaurants in the United States, half of all Americans have, at some point in their lives, worked in a restaurant. Nonetheless, restaurants violate state wage and hour laws and the Fair Labor Standards Act (FLSA) every day.

If you work as a bartender in a bar or restaurant, you have probably been asked to perform any number of non-tipped tasks, such as refilling or emptying the ice bin, cleaning and stocking bottles, and general cleaning and organizing tasks. But there are limitations on what your employer ask you to do, and how much they are required to pay you for certain tasks.

What Are Examples of Non-Tipped Side Work for a Bartender?

Of course, every bar and restaurant is different, but side work for a bartender may include:

  • Refilling ice or emptying out the ice bin
  • Rolling silverware
  • Re-setting tables
  • Vacuuming, cleaning, or sweeping the bar or restaurant
  • Changing the chalkboard illustrations and marketing materials
  • Taking out the trash
  • Cleaning and plastic wrapping the soda fountain
  • Cleaning and covering liquor bottles
  • Lighting or extinguishing candles in the restaurant
  • Cleaning out the coffee machine
  • Cleaning the bathrooms
  • Cleaning and polishing wine glasses
  • Cleaning the walk-in freezer
  • Taking inventory and re-stocking product

How Much Should a Bartender Be Paid for Non-tipped Side Work?

The Fair Labor Standards Act (FLSA) allows a restaurant to claim a tip credit equal to the difference between the required federal minimum wage of $7.25 per hour and the tipped minimum wage of $2.13 per hour. Unfortunately, many bar and restaurant employees spend a sizeable amount of time doing non-tipped work for $2.13 per hour. People will claim that the restaurant is required to make up the difference if an employee’s minimum wage doesn’t add up to the federal minimum wage of $7.25 per hour. But very few restaurants actually do that because the overall earnings of the bartender add up to more than the tipped minimum wage. In practice, this means that a bartender ends up working - sometimes many hours - for what works out to be a non-tipped wage of $2.13 per hour.

How Much Non-tipped Side Work Can a Restaurant Require Me to Do?

Most bars and restaurants follow the 80/20 tip credit rule, also known as the “20% rule”, which states that an employer cannot claim the tip credit if an employee spends more than 20% of his or her time doing side work. However, in the September 2017 case of Marsh v. J. Alexander’s, LLC the 9th Circuit Court of Appeals found that the 80/20 rule is not contained in the FLSA and, therefore, need not be applied.

The 80/20 rule still applies in Kansas, but this decision creates a circuit split that could make the issue ripe for appeal to the U.S. Supreme Court.

What Can I Do If I’m Not Paid Minimum Wage for Non-tipped Side Work?

If you work as a bartender in a bar or restaurant and receive tips as part of your wage, it’s important to track whether you are, in fact, earning minimum wage. If you are required to perform non-tipped side work as part of your job and believe you’re earning less than minimum wage, contact the skilled and experienced wage and hour lawyers at Brady & Associates today. Call (913) 696-0925, or complete our online form.

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