Food servers often experience down times during their shifts when they find themselves waiting for customers, which raises the question: Is it legal for businesses to pay servers below the minimum wage of $7.25 per hour while they are waiting for customers, and, subsequently, not earning any tips? Tipped employees in Idaho earn $3.35 per hour.
While it may appear to be an easy question, it is actually more complicated. Oftentimes, follow-up questions are necessary to determine if work is still being performed and if it’s considered compensable time.
During work time when a tipped employee is not receiving tips, he or she will still be paid the tipped minimum wage but it is based on the average for the pay period. Hours worked and tips received must equal no less than Idaho’s minimum wage of $7.25 per hour.
For example, if a pay period is one week and an employee works 40 hours, 10 of which were not serving but engaged in other work, the average of the employee’s hourly wage plus tips for the 40 hours must be $7.25 per hour minimum — $290 for the week..
Learn more about wage requirements for tipped employees here.
Whether an employee needs to be paid also depends on whether he or she is on or off duty.
‘Engaged to wait’ vs. ‘waiting to be engaged’
Employees must be compensated for all time spent waiting while on duty and time spent by employees in waiting or in periods of inactivity while on duty must be counted as hours worked. This is particularly true where waiting periods are of such short duration that the employees cannot use them for their own benefit unless:
1.) the employee is completely relieved of duty and allowed to leave the job;
2.) the employee is relieved of duty until a definite specific time; or
3.) the interim period is long enough for the employee to use for his or her own purpose.
An employee who is required to remain “on call” on the employer’s premises is working while “on call.” An employee who is required to remain on “on call at home” and required to leave word at home or with company officials where he or she can be reached – but is not required to remain on company premises is not considered to be “on call,” however additional constraints on the employee’s freedom could require this time to be compensated.
Employees who wait before starting their duties because they arrived at the place of employment earlier than the required time are not entitled to be paid for waiting time.
However, if an employee reports at the required time and then waits because there is no work to start on, the waiting time is compensable work time as required by an 2006 Sixth U.S. Circuit Court of Appeals decision Chao v. Akron Insulation & Supply Inc., 184 Fed. Appx. 508.
U.S. Department of Labor has defined “off duty” as periods during which an employee is completely relieved from duty and which are long enough to enable the employee to use the time effectively for his or her own purposes. The employee is not completely relieved from duty and cannot use the time effectively for his or her own purposes unless the employee is definitely told in advance that he or she may leave the job and that the employee will not have to commence work until a specified hour has arrived. Whether the time is long enough to enable the employee to use the time effectively for his or her own purposes depends upon all of the facts and circumstances of the case.
Sources: USDOL 29 C.F.R. §785.15; Donovan v. 75 Truck Stop, Inc., No. 80-9-Civ-Oc, 25 Wage & Hour Cas. (BNA) 448 (M.D. Fla. 1981)