In December 2021 the Department of Labor entered a mandate requiring restaurants to pay their servers and bartenders the full minimum wage (no tip credit can be taken from the employee’s pay) if the servers or bartenders spend more than 30 continuous minutes performing “side work.”
“Side work” is a term employers use to describe work which is incidental to their staff’s primary duty of serving the customer. Examples of these tasks often include refilling salt and pepper shakers, refilling ketchup bottles, rolling silverware, folding napkins, sweeping or vacuuming under tables in the dining area, and setting tables. At some restaurants these tasks can also include preparing food, including salads, or cleaning the kitchen or bar area. To be sure, this side work usually involves no customer interaction at all.
Many restaurants require servers and bartenders to report to work 45 minutes to an hour before the restaurant actually opens to the public, or to stay long after it closes for the night. During that time, the servers and bartenders often will do side work. In this type of a situation, the restaurant must pay the servers and bartenders the full minimum wage when they are performing this work. The restaurant must keep track of the amount of side work being performed and cannot reduce employee wages by taking a tip credit for any of the work performed during that specific period of time.
There is another law that requires servers and bartenders to be paid the full minimum wage for time spent on side work. It is known as the 80-20 Rule. The 80-20 Rule says that restaurants may not take a tip credit from servers and bartenders for time spent on side work if that time amounts to at least 20% of their overall workweek. Unlike the 30 Consecutive Minutes law, the 80-20 Rule considers time spent doing side work throughout the whole workweek, whether the side work was done in consecutive minutes or spread out throughout the week.
How To Know If You Are Getting The Right Pay?
If you are facing a situation that falls into performing more than 30 minutes of continuous side work at a restaurant, or are performing side work for more than 20% of your workweek, contact our employment law attorneys right away by phone at (800) 483-0998 or online and request a confidential case evaluation.