For decades, Connecticut had a set of laws and regulations which protected the rights of servers and bartenders better than any state in the country. These “tip credit” laws protected these workers from being paid below minimum wage for non-service work. It was okay to pay them the lower server rate (currently $5.78 per hour) for time they spend waiting on customers because the customers supplement their income with tips. But, when they are not being tipped and are performing routine stocking and cleaning duties, the law required them to be paid the full minimum wage. The rules were also clear that if these two types of work were not segregated and paid at the appropriate wages, then the tip credit could not be taken for any hour in the shift. So, for example, if a server were asked to stock and clean for an hour after their shift was over, if the employer didn’t pay that hour at $9.15, then it had to pay every hour that day at $9.15 and could not take advantage of the tip credit.
Last month, the Connecticut Department of Labor issued a “Basic Guide to Wage and Hour Related Laws Regarding the Restaurant Industry” which watered down these rules and informed employers that it would not enforce them!
Specifically, the DOL created a brand new 20% rule which has no basis in Connecticut’s statutes or regulations. It wrote:
“We will allow use of a tip credit if these non-service (and/or questionable service-related) duties comprise 20% or less of the service person’s total working time on a particular shift.“
This is truly outrages!
This example will illustrate why:
A server works a 6 hour shift. For 5 hours she waits on tables, is paid $5.78 per hour and collects tips. For one hour, after her shift is done and her tip producing customers are gone, she performs non-service duties. This includes rolling silverware, stocking to go cups, bringing cups and silverware out from the back room and putting it away, cleaning coffee pots and condensing ketchup bottles. During this hour, she waits on no tables and collects no tips. Under the law, this hour should be paid at $9.15. Further, an employer’s failure to pay this hour at $9.15 requires it to pay this server $9.15 for the entire shift. (See Regulation 31-62-E4, “If an employee performs both service and non-service duties and the time spent on each cannot be definitely segregated and so recorded, or is not definitely segregated and so recorded, no allowances for gratuities may be applies as part of the minimum fair wage.” Well, our Department of Labor has just informed employers that it will not enforce this law in this situation! Despite the fact that this person will have performed 5 hours of non-service work in a week, the Connecticut Department of Labor will give its employer a pass on the minimum wage!
This server should be paid $54.90 for this shift and instead is getting only $20.22! Under the Connecticut Department of Labor’s new “20%” rule, this person will not be paid the minimum wage because one hour of non-service work out of 6 is less than 20% (6 x .2 = 1.2 hours). This is an outrageous position to take. At today’s rates, this server should be paid $9.15 for all 30 hours per week instead of $5.78. This difference of $3.37 per hour over a full year (say 50 weeks x 30 hours = 1,500 hours) will cost an average server over $5,000 per year in wages!
The Hayber, McKenna & Dinsmore has recently brought several lawsuits attempting to enforce these laws and has recovered thousands of dollars in wage for servers and bartenders. It would be nice if the Connecticut Department of Labor would do the same!