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Scott Wagner & Associates, P.A. Florida Labor & Employment Lawyer
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How Does Overtime Work If I Am Paid in Tips in Florida?

Tips

Under the federal Fair Labor Standards Act (FLSA), non exempt employees are entitled to overtime pay when they work more than 40 hours in a given workweek. For a number of different reasons, calculating overtime pay can be complicated, especially for tipped employees. You may be wondering: Do tipped employees get overtime pay in Florida? The answer is ‘yes’—but calculating overtime wages for tipped employees can be tricky. In this article, you will find a guide to the key things to know about tipped workers and overtime pay in Florida.

Know the Law: Tipped Employees Can Qualify for Overtime Pay 

For overtime pay, Florida follows the federal FLSA. Under the statute, non-exempt employees are entitled to overtime. Employers do not get to simply “choose” whether or not an employee is ‘exempt’ for purposes of overtime laws. Instead, the FLSA exemption is based entirely on the circumstance of employee, including the employees’ total salary, professional background, and the nature of the job duties.

In practice, the overwhelming majority of tipped employees are eligible to receive overtime pay. If an employer is telling you that you cannot receive overtime because you are a tipped employee, that is simply a false statement. The FLSA does not allow companies or organizations to deny overtime pay to an employee simply because they receive tips. 

How to Calculate Overtime for a Tipped Worker: An Example  

Now that you know that tipped employees are generally entitled to overtime pay when they work more than 40 hours in a week, you need to know how to calculate their overtime wages. For most workers, calculating overtime is fairly straightforward. Non-exempt employers are entitled to time-and-a-half for overtime hours. An employee who is paid $22 per hour is entitled to an overtime rate of $33 per hour.

The challenge for tipped employees is that their total rate of pay is not always consistent. However, overtime is calculated based on the direct hourly wage paid by their employers. As of January 1st, 2021, the minimum wage in Florida is $8.65 per hour and the minimum direct wage for tipped employees is $5.63. In effect, this means that employers are entitled to take a maximum $3.02 hourly ‘tip credit’—assuming that tipped employees more than make up the difference with their tips.

To calculate tipped employee income, the Florida minimum wage (currently $8.65) must be multiplied by 1.5 to get $12.97. The $3.02 maximum tip credit is subtracted from that amount. In effect, this means that employers must pay at least $9.95 in direct wages to any tipped employee for their overtime hours. 

Get Help From a Wage and Hour Attorney in Florida  

All employees are entitled to the full and fair wages that they earned through hard work. Companies and organizations can be held accountable through a wage and hour claim. If you have any questions about overtime pay and your rights as a tipped employee, contact an experienced Florida employment attorney for immediate assistance.

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* Cathleen Scott is licensed to practice in Florida only.

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