Overtime and Tips: How Do Florida Overtime Laws Work?
Do Tipped Employees Qualify for Overtime in Florida?
Florida Overtime Laws
Florida overtime laws follow the Fair Labor Standards Act (FLSA) mandates —those who qualify for overtime must be paid the overtime premium. If an employer violates the mandates of the FLSA, they can and should be held accountable for not paying their employee(s) overtime in Florida.
Do servers get paid overtime?
The short answer to that question is “yes.” Although, servers and other types of employees who get tips do not get overtime paid the same way that other workers get paid. Typically, if someone is making, for example, $15 per hour and qualifies for overtime in Florida, all hours worked past 40 hours in one workweek would be paid time and a half. So, if the employed worked a total of 50 hours in one workweek, they would get paid $15 (regular rate) x 1.5 (OT rate) x 10 (OT hours worked) = $225 in overtime pay in Florida.
How do you calculate overtime in Florida if you’re a tipped employee?
Once you understand that, generally speaking, tipped employees are entitled to overtime pay in Florida, you need to know how to calculate it. The calculations for server overtime pay and other tipped employees are more complicated than the basic formula for other employees. Since the total pay rate for tipped employees is not consistent over time, it can be challenging. First, you must consider the hourly rate of pay you receive from your employer.
The standard minimum wage in Florida as of September 30, 2021, is $10.00 per hour, and the server minimum wage in Florida is $6.98. Florida law allows employers to take a maximum “tip credit” of $3.02 per hour. This assumes that the employee will be able to make up those wages with tips. Then, to calculate overtime pay for tipped employees, you take the Florida minimum wage, currently at $10.00, and multiply it by 1.5, which equals $15.00. After this, you subtract the tip credit. $15.00 – $3.02 = $11.98. Overtime pay for tipped employees (any hours worked over 40 in one workweek) should be at a minimum rate of $11.98.
What should tipped employees do if they’re not being paid fairly?
The first thing tipped employees should do if they feel they are not being paid fairly regarding overtime in Florida is to obtain as much documentation as they can. One of the most important types of documentation is the verification of the hours that they have been working, including regular hours and overtime hours. Whether you received your schedules electronically or through printed schedules, saving and organizing the days/weeks/months, and times you have worked will go a long way to prove what you are lawfully owed.
Additionally, collect documentation of your paystubs (electronic or paper) and any other related documentation you may have that reflects wages and/or tips. Human resources documents such as employee handbooks and personnel/employment information, including any employment agreements, can help ensure you receive fair wages. Another action that can be taken is to speak to your fellow employees about how they are compensated for overtime.
It is not uncommon for employers across the company or establishment to pay servers and other tipped employees in the same way. If your employer is not paying you appropriately for your overtime, it is possible that they are doing the same thing with other employees. Whether it is one person, or a group of people, violating the employee rights of workers is serious and comes with consequences.
Employers who do not pay appropriate wages for overtime for servers and other tipped employees should be held accountable for their actions. If you are working more than forty hours per workweek in Florida, you should be getting, at a minimum, $11.98 for each overtime hour. These wages can add up over a period of time and amount to significant wages. Do you believe you have a wage and hour claim against your employer? Contact Wenzel Fenton Cabassa, P.A.
Wenzel Fenton Cabassa, P.A., Florida Wage and Hour Lawyers
The wage and hour lawyers at Wenzel Fenton Cabassa, P.A. fight hard to ensure the rights of employees across the state are being upheld. We believe strongly in the right to fair wages, including appropriate overtime pay in Florida. We understand what it takes to hold employers accountable for employment law violations and are with our clients every step of the way. Your employer most likely has a lawyer or team of lawyers, and you have the right to effective legal counsel.
Have you not received appropriate overtime in Florida? Contact us today for a free, confidential case evaluation. We have helped many servers, other tipped employees, and workers in other industries across the state hold employers accountable for violations of Florida overtime laws.
We have locations across the state in Tampa, Orlando, Miami, Sarasota, Jacksonville, St. Petersburg, and West Palm Beach to fight for the rights of hospitality/restaurant workers and other tipped employees. You deserve fair wages, and we are here to help. If payment for our legal fees is a concern, know that we are a contingency law firm.
There are no fees for our services unless we win.
Wenzel Fenton Cabassa, P.A. is listed in the U.S. News & World Report’s Best Law Firms 2021 issue and has the highest Avvo rating – 10.0.
Frequently Asked Questions
What is overtime under the Fair Labor Standards Act (FLSA)?
Overtime pay is required by the FLSA when a non-exempt employee works more than 40 hours in a workweek. In most cases, employers must pay at least 1.5 times your regular hourly rate for all hours over 40. While some employees are exempt under narrow legal definitions, most workers are entitled to overtime pay.
What if my employer says I’m “salaried” to avoid paying overtime?
Being salaried doesn’t automatically make you exempt. If your job duties don’t meet the legal exemption tests, you may still be entitled to overtime — even if your employer calls you “salaried.”
If your employer labels you “salaried” to avoid paying overtime, the Florida overtime lawyers at Wenzel Fenton Cabassa, P.A. can help determine whether you’re owed back wages.
What if my employer makes me clock out but keep working?
That’s illegal. Any work you perform — even off the clock, during breaks, or after hours — must be counted toward your total hours worked and paid accordingly.
If you’ve been forced to work off the clock, you should contact the Florida wage and hour attorneys at Wenzel Fenton Cabassa, P.A.
Am I entitled to overtime for remote work or answering emails after hours?
If your employer requires or allows you to work outside of regular hours, that time must be tracked and compensated as overtime if it puts you over 40 hours. (and if you qualify for OT)
How far back can I recover unpaid overtime wages?
Generally, you can recover up to 2 years of unpaid overtime, or 3 years if your employer’s violation was willful.
Can my employer give me “comp time” instead of paying overtime?
No. In the private sector, you cannot be given future time off instead of overtime pay. That’s unlawful under the FLSA.
If your employer substitutes comp time for overtime, contact the overtime lawyers at Wenzel Fenton Cabassa, P.A. we’ve helped recover owed wages for employees across the state of Florida.
What if I worked through lunch but wasn’t paid?
If you’re not fully relieved of duties during lunch — answering calls, emails, or staying on-site — that time counts as work. If it pushes you over 40 hours, it must be paid as overtime.
How to sue an employer for unpaid overtime?
To recover unpaid overtime, you may file a claim under the FLSA. Many employees recover not only back pay but also liquidated damages (which may double the amount owed) and attorney’s fees.
If you’re ready to take action, the overtime litigation attorneys at Wenzel Fenton Cabassa, P.A. can evaluate your claim and guide you through the process.
Can a company force you to work off the clock?
Employers cannot require or permit employees to perform unpaid work. If you’re working before clocking in, after clocking out, or during unpaid breaks, you must still be compensated.
If your employer has forced you to work without pay, contact the wage and hour attorneys at Wenzel Fenton Cabassa, P.A.
Please Note: At the time this article was written, the information contained within it was current based on the prevailing law at the time. Laws and precedents are subject to change, so this information may not be up to date. Always speak with a law firm regarding any legal situation to get the most current information available.
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