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Have Service Employees? Here's How to Use the Tip Credit

 

How the Tip Credit Works

The Fair Labor Standards Act says to pay tipped employees at least the federal minimum wage, which is $7.25 per hour. Per the act, you can pay tipped employees direct wages, with the required minimum being $2.13 per hour. Also, you can take a tip credit of up to $5.12 per hour to bring the employee's wages up to the federal minimum wage. If the employee's tips do not equal at least $5.12 per hour, you must pay more than $2.13 per hour in direct wages so that the employee will receive at least the federal minimum wage.

To be able to use the FLSA's tip credit provision, you'll need to show that the employee receives the federal minimum wage after the direct wages and the tip credit are combined. If the employee receives only tips and no direct wages, you cannot take the tip credit and must pay the full minimum wage.

Overtime and the Tip Credit

You may use the tip credit for overtime compensation purposes. To arrive at the hourly overtime rate for a tipped worker, multiply the federal minimum wage of $7.25 per hour by 1.5. Then, subtract the tip credit, which cannot be more than $5.12 per hour.

Tipped Workers with Dual Jobs

The FLSA permits you to use the tip credit for tipped employees who perform related non-tipped duties — such as a waitress who also makes coffee, toasts bread, sets tables and washes dishes from time to time. However, you cannot take the tip credit if the employee spends more than 20 percent of his or her time on related non-tipped duties.

Requirements for Claiming the Tip Credit

In order to use the tip credit, you must give each tipped employee the following information:

  • The direct wage you will pay the employee.
  • The tip credit amount you will claim.
  • Notification that the tip credit will not exceed the employee's tips.
  • Notification that the employee will get to keep all of his or her tips, unless there's a valid tip pooling arrangement.
  • Notification that the tip credit will not be used unless you inform the employee of it.

If you fail to provide proper notice to the employee, you cannot take the tip credit and must pay the employee at no less than the federal minimum wage.

State Tip Credit Laws

The state may require a higher minimum direct wage than the FLSA. In some states, the maximum tip credit exceeds the FLSA's.

In most states, the combined minimum direct wage and tip credit is equal to or more than the federal minimum wage. However, in Wyoming, the combined amount is $5.15 per hour, which is less than the federal minimum wage. Therefore, tipped employees in Wyoming who are also subject to the FLSA must receive no less than the federal minimum wage.

 

 
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Our firm provides the information in this e-newsletter for general guidance only, and does not constitute the provision of legal advice, tax advice, accounting services, investment advice, or professional consulting of any kind. The information provided herein should not be used as a substitute for consultation with professional tax, accounting, legal, or other competent advisers. Before making any decision or taking any action, you should consult a professional adviser who has been provided with all pertinent facts relevant to your particular situation.The information is provided "as is," with no assurance or guarantee of completeness, accuracy, or timeliness of the information, and without warranty of any kind, express or implied, including but not limited to warranties of performance, merchantability, and fitness for a particular purpose.
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