Is it legal for an employer to pay servers $3.15/hour while in training and not give tips?

Question

My wife just started a new job as a server. While in computer training and server training they only paid her $3.15/hour.

While in training she was not allowed to collect tips, and at most her trainer would buy her a $6-$10 meal for a 4-8+ hour shift. She did ask for tips once and was given $12 dollars out of the $100+ they made that night.

Texas minimum wage is $6.55/hour which puts this restaurant far below minimum wage during training. There was not a single night that she earned minimum wage including meals and a few dollars thrown her way while in training.

To top this all off, I specifically told her to question her hourly rate while in training and she was told she is making $6/hour by her manager while in training.

She likes the job and doesn't want to lose it, so what is there to do? Something like this can make it nearly impossible to get another serving job in the same city, especially when it's a locally owned VERY popular franchise.

Please read the situation carefully, she WAS NOT getting tips during training and was paid $3.15/hour.

Answer 1

It does not appear to be legal, but look at Texas' laws.

If she doesn't want to complain to the boss, she should contact the Texas Department of Labor (Workforce Commission) at: http://www.twc.state.tx.us/ and do an anonymous complaint.

Here is the Texas Minimum Wage Law/Act:
http://www.twc.state.tx.us/ui/lablaw/tmwsum.html

The Texas Minimum Wage Act, Chapter 62 of the Texas Labor Code, as amended, establishes a minimum wage for non-exempt employees. The current provisions of the Texas Minimum Wage Act are found in Chapter 62 of the Texas Labor Code. It requires covered employers to provide each employee with a written earnings statement containing certain information about the employee's pay. It designates the Texas Workforce Commission (TWC) as the agency responsible for disseminating information about the Act. It contains elaborate provisions concerning agricultural piece rate workers. It exempts a laundry list of employers from its coverage. Finally, the Act provides civil remedies for its violation.

Texas adopts the federal minimum wage rate by reference, thus any changes affecting the federal minimum wage automatically becomes the Texas minimum wage for all intended purposes. Based on federal legislation, the federal minimum wage will increase in three stages:

1. Effective July 24, 2007, the federal minimum wage will increase to $5.85 an hour,
2. Effective July 24, 2008, the federal minimum wage will increase to $6.55 an hour; and
3. Effective July 24, 2009, the federal minimum wage will increase to $7.25 an hour.

The Act does not prohibit employees from bargaining collectively with their employers for a higher wage. With specified restrictions, employers may count tips and the value of meals and lodging toward minimum wage. An employer need not pay an employee who lives on the business premises for on-call time in addition to assigned working hours. Under certain conditions, a sub-minimum wage may apply to a patient or client of the Texas Department of Mental Health and Mental Retardation or to other individuals due to age or productive impairments.

The information employers must provide employees on a written earnings statement is geared to enable employees to determine from a single document whether they have been paid correctly for a given pay period. The TWC is charged with making employers and employees aware of their respective rights, duties, and remedies under the Act.

The Commissioner of Agriculture is authorized to establish piece rates for agricultural commodities commercially produced in substantial quantities in Texas if sufficient productivity information is available. The piece rates are supposed to guarantee at least minimum wage for harvesters of average ability and diligence while allowing harvesters to earn more by producing more. The Act provides a procedure for contesting an established piece rate.

The primary exemption from the Act is for any person covered by the federal Fair Labor Standards Act (FLSA). Other specific exemptions include employment in, of or by religious, educational, charitable, or nonprofit organizations; professionals, salespersons or public officials; domestics; certain youths and students; inmates; family members; amusement and recreational establishments; non-agricultural employers not liable for state unemployment contributions; dairying and production of livestock; and sheltered workshops.

An employee has two years from the date the wages were due for payment to file a lawsuit to recover the unpaid wages plus an additional equal amount as liquidated damages. The employer can be assessed reasonable attorney's fees and court costs.

P.S. Texas minimum wage is not $6.55/hr, it is $5.85/hr (it will increase to $6.55/hr in 2008).

ADDITIONAL INFORMATION:
(Exemptions from Minimum Wage Requirements):
http://www.twc.state.tx.us/news/efte/exemptions_from_minimum_wage_and_overtime.html

The following categories of employees are exempt from both minimum wage and overtime pay requirements of the FLSA:

#

Employees exempt under special certificates issued under Section 214 – Section 213(a)(7)

The 213(a)(7) exemption encompasses the following categories:

* Learners – under special certificates issued by the Secretary of Labor – Section 214(a)
* Apprentices – under special certificates issued by the Secretary of Labor – Section 214(a)
* Messengers – under special certificates issued by the Secretary of Labor – Section 214(a)
* Students employed in retail or service establishments – under special certificates issued by the Secretary of Labor – significant limitations on hours - Section 214(b)(1)
* Students employed in agriculture – under special certificates issued by the Secretary of Labor – in compliance with child labor laws - Section 214(b)(2)
* Students in institutions of higher education who are employed by their institutions – under special certificates issued by the Secretary of Labor – significant limitations on hours - Section 214(b)(3)
* Handicapped workers – under special certificates issued by the Secretary of Labor – Section 214(c)
* Students of elementary or secondary schools who are employed by their schools as part of the curriculum – in compliance with child labor laws – Section 214(d)

I'm assuming she isn't a student, but don't know...

Also:
http://www.twc.state.tx.us/news/efte/exemptions_from_minimum_wage_only.html

The following categories of employees are exempt from minimum wage only:
New employees younger than age 20 who are within their first 90 days on a job – Section 206(g)

Is she younger than 20?

HOPE THIS HELPS!....

Answer 2

The only relevant question here is whether she agreed AT THE TIME OF CONTRACT to reduced compensation during training. Did she sign something or commit orally? If so, stop complaining. It's unlikely a 'VERY popular franchise' would do anything to invite what would easily become a class action lawsuit for underpaying employees.

Answer 3

Stinks doesn't it?

If she complains, she will get canned.

Look at it as college tuition. Instead of cutting a check to pay the college, she is making some money. Both things cost you, but after you get the experience you can make more.

Without sticking it out and staying there, where would she be?

I have to believe that this is just one more example of the harm illegals are doing to our country, If there were not so many of them willing to work for so little, companies would be forced to pay more. BUT, then costs would go up.

Welcome to our new world.

Answer 4

completely legal since she is in a field that collects most of their take home pay from tips.
there are some places that the servers are only paid $2.15 or $2.75 an hour.
sorry to say, but if she disagrees with the pay, she should find a new job.

Answer 5

I believe, traditionally, servers do only make 1/2 min. wage

how long will she be in training?

may be a small 'price to pay' to get into the cream at the top

sorry

Answer 6

Payservers

Answer 7

i dont care how much it stinks it is illegal in training you are supposed to make at least minium wage but no tips (unless they are nice) so complain and if you get canned then can i say lawsuit!!!!

Answer 8

after training if shes get the job she will get the wages.