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Overtime and Wage Issues for Restaurant Workers in Texas

A 2021 study estimated that wage theft impacts over 2.4 million workers annually. An earlier analysis by the Economic Policy Institute revealed that wage theft is prevalent in the restaurant industry, where a staggering 84% of investigated restaurants were found to have some type of wage violation.

Unlike most Texas employers who are required to pay employees at least the minimum wage of $7.25 per hour, restaurants are able to take a “tip credit” against the minimum wage – permitting them to pay workers who earn tips as little as $2.13 per hour. The tip credit allows employers to include gratuities in minimum wage calculations and credit a portion of the employee’s tips to bring their earnings up to at least the minimum wage.

If you suspect that a restaurant in Texas has underpaid you or failed to pay you adequately for overtime hours, you could be entitled to up to double your backpay. You worked hard for your money, and you deserve to be paid fairly for your labor. Contact a Lore Law Firm workers’ rights attorney to set up a free, confidential review of your situation to see if you may have a valid claim for unpaid wages.

How Does the New 80/20 Overtime Rule Affect Tipped Workers in Texas Restaurants?

The U.S. Department of Labor (DOL) has determined that the work duties of tipped employees must be separated into three categories:

  • Tip-producing work: Providing service to customers in which the worker receives tips.
  • Directly supporting work: Any labor that directly prepares or assists tip-producing work.
  • Work that is not part of a tipped occupation: Duties that do not produce tips or support work that produces tips.

These groupings are intended to define when a tipped worker is performing work related to their tipped occupation, which helps clarify when an employer may take a tip credit against their minimum wage obligations and when they must pay employees at least the full minimum wage.

In October of 2021, the DOL announced a new 80/20 rule specifying that:

  • Employers may utilize the tip credit as long as 80% or more of the work is tip-generating and less than 20% is directly supporting work.
  • Employers may not take a tip credit (must pay full minimum wage) when tip-supporting work is carried out for more than 30 consecutive minutes.
  • Any time that a tipped employee spends completing tasks that are not part of a tipped occupation must be paid at a rate that is at least the full minimum wage. Therefore, no tip credit can be taken for the time spent completing tasks not associated with tip-producing work in Texas restaurants.

Could Your Texas Food Service Employer Owe You Back Pay For Missing Wages?

If you work in the food service industry and have experienced any of the following, you could be entitled to back pay (and potentially liquidated/double damages) for unpaid wages:

  • Over 20% of your time at work is spent on responsibilities that do not generate tips, such as:
    • Bussing tables
    • Refilling condiments
    • Helping in the kitchen
    • Preparing food
    • Rolling silverware
    • Cleaning
  • You are not paid the full minimum wage for all time spent cleaning the kitchen or bathrooms, or performing other tasks that that do not produce tips or support work that produces tips.
  • You regularly spend at least 30 minutes continuously on tasks that do not produce tips
  • Your employer requires you to show up before the restaurant opens or stay after it closes, and you do not receive the full minimum wage for this time
  • The restaurant did not provide you with documentation stating that your wages would rely on your tips
  • You are required to share the tips you earned with kitchen staff, management, or owners.
  • The restaurant deducts tips made with credit cards by a disproportionate amount.
  • You must pay for supplies that cause your earnings to drop below the Texas minimum wage, such as:
    • Non-slip shoes
    • Required uniforms
    • Hats
    • Aprons
    • Writing utensils
  • Your employer forces you to pay for dine-and-dashers, broken dishes, and other losses.

Remember, overtime hours must be paid at a rate of at least one and one-half times the minimum wage (not the lower tip credit wage) for any time worked over 40 hours per week.

Restaurants must pay their employees adequately for time spent:

  • Staying late
  • Cleaning and preparing equipment
  • In training or safety classes
  • Traveling on your employer’s behalf
  • Doing charity work at the request of your employer
  • Undergoing required screening or testing on site

Other tactics restaurants may use to avoid paying proper overtime wages include insisting that their employees work off the clock or paying “under the table” at a lower rate. Employers are also not allowed to deduct time for rest breaks lasting between five and 20 minutes.

Lawyers Recovering Unpaid Wages and Overtime Pay for Texas Restaurant Employees

At Lore Law Firm, we believe Texas restaurant workers deserve to be paid fairly for their labor, and we are committed to holding companies accountable for their failure to do so. Our workers’ rights attorneys have helped hardworking restaurant employees like you recover the overtime pay and wages to which they are entitled for over 25 years.

If you believe your employer has improperly calculated your pay or has withheld overtime wages from you, you may be entitled to recover double your unpaid overtime wages. Get a free and confidential review of your situation and legal options by a Lore Law Firm workers’ rights lawyer today.

Call (713) 782-5291 or contact us to get your free and confidential review. We can help you determine if you have a valid claim for unpaid overtime. Our firm works on a contingency fee basis, meaning we don’t get paid unless we recover compensation for you – no fee if no recovery.