employer paying properly?

Question

My wife works for a large restaurant chain here in Ohio where she is a server. During open hours she is paid a "server" wage under the minimum wage (but not under minimum tip wages). After the restaurant closes should she and other servers be clocking in as regular minimum wage employees since they are cleaning up and no longer serving tables? The management says "No you can't" to them but as a former restaurant manager at a different company this was exactly what we did, strictly because they could no longer receive tips. Looking for some advice...

Answer 1

The Ohio minimum wage laws don't go into these details; the Fair Labor Standards Act applies. The information handout on tipped employees (which does state that the tips + wage must equal the minimum of $5.85 per hour) also addresses dual duties, as follows:

"When an employee is employed concurrently in both a tipped and a non-tipped occupation, the tip
credit is available only for the hours spent in the tipped occupation. The Act permits an employer to take the tip
credit for time spent in duties related to the tipped occupation, even though such duties are not by themselves
directed toward producing tips, provided such duties are incidental to the regular duties and are generally
assigned to such occupations. Where tipped employees are routinely assigned to maintenance, or where tipped
employees spend a substantial amount of time (in excess of 20 percent) performing general preparation work or
maintenance, no tip credit may be taken for the time spent in such duties."

Answer 2

BY LAW: wages PLUS tips must equal or exceed minimum wage for ALL hours worked, so after hours when NO tips are available, they MUST pay minimum wage, or more. They cannot include things like free or discounted food in the calculation.