There are a number of ways your employer can cheat you out of the minimum wage and, in some cases, you may not even realize that your employer is doing something wrong. Below are examples of common violations our attorneys see in their wage and hour practice.
The employer fails to meet the tipped minimum wage
The federal and Florida tipped minimum wages are $2.13 and $5.03 per hour, respectively. Tipped employees such as waiters, busboys, and bartenders can be paid this tipped minimum wage as long as they receive at least the minimum wage when the money they earn in tips is taken into account. When tipped employees do not make at least the minimum wage between their tips and hourly rates, they are entitled to “minimum wage makeup” on their paychecks. Furthermore, tipped employees are the only ones who can take part in a “tip pool.” When non-tipped employees, such as chefs and managers, take money from the tip pool, the tipped employees’ wages may fall beneath the minimum wage.
For example, assume a waitress in Florida makes $5.03 per hour. In one week, she works 40 hours and earns $80 in tips, bringing her total pay for the week to $281.20. When her total pay is divided by the number of hours she worked, her hourly rate only amounts to $7.03 – well below the Florida minimum wage of $8.05. Therefore, her employer is responsible for paying her a “minimum wage makeup” of $40.80 on her paycheck; however, when she receives her paycheck, her employer did not pay her the additional “minimum wage makeup.” In this situation, the attorneys at Morgan & Morgan may be able to help the waitress file a lawsuit against her employer seeking compensation for unpaid wages.
The employer allows or forces employees to work “off the clock”
The FLSA prohibits off-the-clock work. Employees must be paid for all work-related activities, including time spent attending meetings and training sessions, putting on and taking off protective gear and clothing, booting up computers, cleaning equipment, and taking short breaks that last between 5 and 20 minutes. When employers fail to pay workers for all the time they spend working, their hourly rates may fall below the minimum wage and they may even be cheated out of overtime pay.
For example, assume an employee is paid the federal minimum wage of $7.25 per hour and works full-time cooking food at a fast-food restaurant. At the end of each shift, he is required to clean the grill, which typically takes about 15 minutes and, each Friday, he is required to replace the oil in the deep-fryer, which takes an additional 15 minutes; however, his employer tells him that he must clock-out for the time spent cleaning and replacing the frying oil. As a result, the worker is not paid for 1.5 hours he works each week, which brings his hourly wage to just $6.98 per hour and also prevents him from collecting overtime pay for these 1.5 hours. In this case, Morgan & Morgan could help the fast-food worker file a lawsuit seeking compensation for unpaid wages and overtime.
The employer fails to properly compensate day-rate workers
Day-rate workers are paid a set amount for each day of work, regardless of how many hours they work. This is generally legal as long as workers’ hourly rates remain at or above the minimum wage. Because this type of pay is commonly used in the oil and gas industries – where employees work 12- to 16- hour days – these workers may be particularly at risk for minimum wage violations.
For example, assume a pipeline inspector is paid a flat rate of $100 each day (or $500 each week) and the number of hours he works each day fluctuates. Throughout the course of one week, he works 14 hours on Monday, Tuesday, and Wednesday, then 16 hours on Thursday and Friday. This brings his total number of hours worked to 74. When his hourly rate is calculated, however, it is only $6.75 per hour, well below the federal minimum wage. In this case, our attorneys may be able to file a lawsuit on his behalf for these minimum wage and unpaid overtime violations.
The employer requires workers to pay out-of-pocket for work-related necessities
When an employee has to pay for certain work-related necessities (e.g., required uniforms, dry-cleaning costs, physical exams, cash register shortages, etc.), their hourly wage may end up falling beneath the minimum wage.
For example, assume a FedEx employee is hired for full-time, seasonal work and will be paid the federal minimum wage. Yet, he is required to get a physical exam before he can start the job and he must pay $50 for the exam, as he does not have any health insurance through the company. At the end of the week, he receives $290 for his work; however, when the cost of the exam is deducted from his pay it brings his total compensation to $240, which means that his hourly wage amounts to just $6 per hour. The lawyers at Morgan & Morgan may be able to file a lawsuit on his behalf seeking compensation for these lost wages.