Monday, July 15, 2024
Dear Erica,
The restaurant where I work has us come in and do 1 hour of side work before we start and then we are sometimes required to do 1-2 hours of side work after our tables are all gone.
Is this legal? If so, should we be getting paid minimum wage?
What if our minimum wage includes a tip credit?
– Side Work Never Ends
Let’s take a moment to clarify something important
Side work is still work.
You are still performing work.
Just because we call it “side work” does not make it a voluntary task that you are doing out of the kindness of your heart.
So, first thing first, you should be getting paid if you are performing work for your employer. This goes for all employees with any employer.
Now, of course, if you work in a state that allows for a tip credit, it can throw a wrench into things, but it doesn’t change the fact that you should still be paid for performing work.
Under the Fair Labor Standards Act, full minimum wage – not the state minimum wage with a tip credit –
should be paid for non-tipped work if the employee performs that non-tip-producing work for a substantial amount of time.
What is substantial?
Well, under the FLSA, it means more than 20 percent of the hours in a workweek for which the employer has taken a tip credit or performing
supporting work for a continuous period of time exceeding 30 minutes.
In this “hypothetical” situation, it sounds like restaurant management is asking employees to perform non-tip-producing work in excess of 30
minutes a day at the beginning and/or end of their shift.
The full minimum wage should be paid in those situations if it exceeds 30 minutes.
For more information on this rule under the FLSA with some enlightening examples, take a look at
Fact Sheet #15A: Tipped Employees under the Fair Labor Standards Act (FLSA) and Dual Jobs.