Vision Payroll

July 15, 2011

Question of the Week: What Is the Impact of Not Providing a Tip Credit Notice?

What is the Impact of Not Providing a Tip Credit Notice?
What Is the Impact of Not Providing a Tip Credit Notice?
This week’s question comes from Tony, a restaurant owner. I read that restaurants should obtain a signed tip credit notice from all tipped employees. What is the impact of not providing a tip credit notice? Answer: Employers who do not provide a tip credit notice are not allowed to take the tip credit.

Minimum Wage for Tipped Employees May Be Lower

Current federal law requires most workers be paid a minimum wage of $7.25 per hour when an employee works forty hours or less in a week. For tipped employees, the minimum cash wage is $2.63 per hour as long as the employee receives enough tips to bring the hourly wage up to at least $7.25 per hour. Some states may have higher minimum wage rates that must be followed in that state. See our Minimum Wage Chart for further information.

Under FLSA, Notice Is Required to Take a Tip Credit

Under §3(m) of the Fair Labor Standards Act (FLSA), a tip credit is not allowed, “with respect to any tipped employee unless such employee has been informed by the employer of the provisions of [the tip credit].”

Employers Must Pay Full Minimum Wage

Employers who do not provide a tip notice and therefore are not allowed a tip credit must pay the full hourly minimum wage of $7.25 per hour the state minimum wage if it is higher than $7.25 per hour.

Contact Vision Payroll Today

Contact Vision Payroll today if you have further questions on the tip credit notice.

February 27, 2010

US Department of Labor Issues and Withdraws Opinion Letter on Tipped Employees

The US Department of Labor (DOL) recently issued Administrator signed Opinion Letter FLSA2009-23. Although Opinion Letters only apply to the exact set of facts and circumstances presented in each case, they are a valuable aid in understanding current interpretations of the Fair Labor Standards Act (FLSA). Because the letter was apparently never mailed after it was signed, the DOL under new Secretary Hilda L. Solis has decided to withdraw the letter for further consideration. Therefore, this letter may not be relied upon as a statement of agency policy. It is possible that a different conclusion may be reached when the Opinion Letter is reissued.

In this Opinion Letter, the DOL had redefined its definition of a tipped employee in situations in which an employee performs some duties related to a tip-producing occupation and some duties unrelated to a tip-producing occupation. Such employees may have dual jobs, such as a maintenance man in a hotel who also serves as a waiter and a single job with dual responsibilities such as “a waitress who spends part of her time cleaning and setting tables, toasting bread, making coffee and occasionally washing dishes or glasses.”

Different courts had issued conflicting rulings as to whether and to what extent unrelated duties could be performed in tip-producing occupations, how those duties were to be determined, and when the tip credit could be taken. The DOL had attempted to clarify in which situations the credit could be claimed. It had listed certain duties that it considered “core or supplemental for the appropriate tip-producing occupation.” It also wanted to clarify that some time spent performing unrelated duties may be exempt under a de minimis rule in the regulations.

State laws may provide rules that are more beneficial to the employee and must be followed. The DOL may come to a different conclusion when it reissues the Opinion Letter after further consideration. Contact Vision Payroll if you have questions about this Opinion Letter.

February 22, 2010

US Department of Labor Issues and Withdraws Opinion Letter on Minimum Tip Credit

The US Department of Labor (DOL) recently issued Administrator signed Opinion Letter FLSA2009-22. Although Opinion Letters only apply to the exact set of facts and circumstances presented in each case, they are a valuable aid in understanding current interpretations of the Fair Labor Standards Act (FLSA). Because the letter was apparently never mailed after it was signed, the DOL under new Secretary Hilda L. Solis has decided to withdraw the letter for further consideration. Therefore, this letter may not be relied upon as a statement of agency policy. It is possible that a different conclusion may be reached when the Opinion Letter is reissued.

In this Opinion Letter, the DOL confirmed its previously stated position “that where a state law requires a minimum wage less than the federal minimum wage and forbids a tip credit, the employer may nevertheless take a tip credit in the amount of the difference between state and federal law.” The Opinion Letter was specifically concerned with a Minnesota law that “purports to prohibit taking a credit for gratuities ‘towards the payment of the minimum wage set…by federal law.’”

State laws may provide rules that are more beneficial to the employee and must be followed. The DOL may come to a different conclusion when it reissues the Opinion Letter after further consideration. Contact Vision Payroll if you have questions about this Opinion Letter.

July 31, 2009

Question of the Week: How Does the Increase in the Minimum Wage Affect the Tip Credit?

Filed under: News — Tags: , , , — Vision @ 10:26 pm

This week’s question comes from Hillary, a restaurant manager. I know the federal minimum wage increased to $7.25 last week. How does the increase in the minimum wage affect the tip credit? Answer: Under §45B of the Internal Revenue Code of 1986 (IRC), employers are allowed a credit for the employer portion of social security taxes (sometimes known as FICA tax or OASDI or Medicare) to the extent the tips claimed plus the cash wages paid exceeds the federal minimum wage. The credit is currently 7.65% of the excess amount and is claimed on Form 8846, Credit for Employer Social Security and Medicare Taxes Paid on Certain Employee Tips. Pursuant to IRC §45B(b)(1)(B), the minimum wage to be used in calculating the credit is the minimum wage in effect as of January 1, 2007 ($5.15). Therefore, the recent increase in the minimum wage does not affect the credit calculation. Vision Payroll can assist restaurants and other eligible employers in calculating the amount of tips eligible for the credit. Contact Vision Payroll if you need further information on the tip credit.

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