Earning tips at the Sub Minimum Wage

A recent article in the Washington Post [For low-wage workers, unprecedented anxiety, November 26, 2013] interviewed people with low wage jobs. It was not a surprise to find them anxious since today’s low wage jobs come and go and do not buy more than basic necessities anyway.

One of those interviewed had a new job working at an airport helping to get wheel chair passengers from the ticket counter through airport security, a special duty porter or sky cap. He thought he would be earning the federal minimum wage, $7.25 an hour, but learned on the first day of work his pay would be $5.25 an hour plus any tips he might receive.

The possibility of tips triggers a lesser known section of minimum wage rules in the Fair Labor Standards Act. Rules allow a sub minimum wage for tipped employees that date from 1966, when it was set at 50 percent of the minimum wage. However, Congress left the tipped minimum at $2.13 an hour when it raised the minimum wage in 1996 and again in 2007. The Federal tipped minimum has remained at $2.13 an hour since 1991, which makes it only 29 percent of the present $7.25 an hour minimum wage. Rules allow a sub minimum wage as low as $2.13 an hour for any employees in any occupation that customarily receives just $30.00 or more a month in tips.

Federal rules governing the Fair Labor Standards Act requires employers who pay a sub minimum wage to verify that tips are enough to bring an employee up to at least the minimum wage, a practice known as taking the tip credit. Taking the tip credit requires recordkeeping to verify that tips make up any difference of the minimum and sub minimum wage.

Notice a sub minimum wage relieves employers of the normal obligation to pay at least a minimum wage. A $7.25 an hour minimum wage is $1,160 a month at 40 hours a week and 4 weeks per month. At $2.13 an hour sub minimum wage for tipped employees is just $340.80 a month, which means a tipped employee needs $819.20 a month in tips to earn the minimum wage. At $5.25 an hour a sub minimum wage for an airport porter or sky cap is $840 a month, which means our sky cap will need $320 a month in tips to earn the minimum wage.

The Post reported the man’s take home pay at around $600 a month but tips were “not usually very much.” Since take home pay on $840 without tips is more than $600, the low pay before tips suggests one of the biggest problems for tipped employees: erratic and uncertain hours of work. Employers can layoff staff during slow periods in the day, or on slow days, to minimize their tip credit obligations.

Sub minimum rules are especially important at full service restaurants where tip sharing rules also apply. Without tip sharing, wages plus tips for waiters and waitresses will tend to be higher than wages and tips for a host or hostess or bartenders, bus staff and other staff with less access to customers. Wage gaps make it harder to get people to do the host and hostess job without paying higher wages as long as we expect people to prefer higher wage jobs to lower wage jobs.

With tip sharing waiters and waitresses pay part of their tips to equalize wages and tips for hosts, hostesses, bartenders and other staff. Tip sharing improves the economic situation of these other staff, but at the expense of waiters and waitresses and not the employer. Like the sub-minimum wage tip sharing saves wage costs for employers and makes it easier and cheaper to run a restaurant.

There are other exemptions to the minimum wage which are reported in the Department of Labor’s “Handy Reference Guide to the Fair Labor Standards Act.” The Department also publishes an annual report entitled “Characteristics of the Minimum Wage” which details the number of people working at or below the minimum wage. In 2006 there were 1.69 million working below the $5.15 an hour minimum wage. The minimum wage was raised to $7.25 an hour July 24, 2009. In 2010, 4.36 million worked at or below the higher minimum wage. As inflation cuts the buying power the number dropped until 3.55 million work at or below the minimum wage in 2012.

The 2012 report shows 4.7 percent of hourly paid wage earners are at or below the Federal minimum wage. The politicians could put a minimum on wages, but the sub-minimum wage along with a list of other exemptions assures the minimum will not be the minimum for the minimum wage.