01 July 2020 
Most people see tipping as a way to boost a server’s salary for good service, but in reality tips often make up almost the entire portion of a server’s daily wage. Many servers enjoy their job, but find it extremely frustrating because the cost of living has increased, but the minimum wage for tipped employees has remained at $2.13 an hour for almost two decades.
The Department of Labor estimates that there were 2,260,300 waiters and waitresses in 2010 and one thing most of them have in common is their hourly minimum wage of $2.13 an hour.
Is $2.13 an hour a legal restaurant wage?
One of the most common questions our lawyers answer is, “Is it legal to pay servers $2.13 an hour?”
The answer is yes, as long as that amount combined with tips equals at least to federal minimum wage or the applicable state minimum wage. If it does not, an employer must make up the difference. However, some states (including California, Nevada, and Washington) do not allow the use of a tip credit at all, and servers must be paid their full wage for every hour worked.
Tips are supposed to bring up your pay to minimum wage, but too often restaurant workers are stiffed by illegal tip pooling or wage theft, which are also increasingly common in this industry.
Are your tips disappearing through illegal tip pools?
Many workers who call our office have questions of whether or not their employer is following federal tip laws. Unfortunately, the answer to this question is often no. What’s even more frustrating for servers is finding out that your wages are getting cut because of illegal tip-pooling or wage theft. Many employers use a servers’ hard-earned tips to pay the salaries of other workers, like food runners, dishwashers, or cooks.
Including employees in a tip pool who do not usually receive tips is not permissible under the Fair Labor Standards Act and employers who do not follow the tip laws can be sued for violating the wage and hour laws.
