The qualifications and calculations for overtime in Florida can be confusing for many workers in the state, including overtime pay for tipped employees.
The federal Fair Labor Standards Act (FLSA) is a key employment law with detailed language to protect employees and guarantee payment of wages for all the hours an employee is rightfully due, including server overtime pay.
Being informed about common questions such as “How does overtime work?” and “How is overtime paid in Florida?” is important for employees to ensure they are receiving fair wages for the hours they 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 consultation.
We have helped many servers, other tipped employees, and workers in other industries across the state hold employers accountable for employment law violations. 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.