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Here’s a tip: To get back pay, sue the boss

Court says workers who get tips are due back pay, but they must sue to get it.
Wednesday, May 30, 2007 | 12:00 a.m. CDT; updated 3:32 p.m. CDT, Saturday, July 19, 2008

JEFFERSON CITY — A judge ruled Thursday that food servers, bellhops and other tipped employees were due a pay raise when Missouri’s minimum wage rose this year, even though the state labor department initially advised otherwise.

The ruling by Patricia Joyce, a Cole County circuit judge, could result in several hundred dollars of back pay for each tipped employee whose boss relied on the faulty interpretation of the minimum wage law.

BY The NUMBERS

62,500: The number of tipped workers in Missouri. $3.25: The new minimum wage for tipped employees, up from $2.13. 21: The number of complaints the labor department has received about low pay for tipped employees.


Missouri’s minimum wage rose from $5.15 an hour to $6.50 an hour on Jan. 1 as a result of a ballot measure approved last year by voters.

Supporters of the law said tipped employees were entitled to a base pay of at least half that amount, or $3.25 an hour. But the Department of Labor and Industrial Relations originally advised on a Web site that tipped employees were due only the federal minimum of $2.13 an hour, as long as their tips pushed their total pay to at least $6.50 an hour.

That changed on March 14, when Gov. Matt Blunt declared the department had gotten it wrong and ordered it to instead advise employers to pay $3.25 an hour to their tipped workers.

Several restaurants sued the labor department, seeking a declaration that the proper wage was $2.13 an hour or alternatively asking to be exempt from providing back pay at the $3.25 threshold between Jan. 1 and the date of Blunt’s decision.

Joyce rejected those arguments, dismissed the restaurants’ lawsuit and said tipped employees were due $3.25 an hour from Jan. 1 onward.

The suing restaurants “cannot take advantage of initially incorrect advice from the department, especially in the face of a contrary statute and regulation, to obtain legal sanction for insufficient wages paid to tipped employees who were entitled to the full benefit of the minimum wage law,” the judge said in her ruling.

St. Louis attorney John Renick, who represented the restaurants, said Tuesday that the ruling likely would be appealed.

Renick said it seemed inconsistent for the department to offer advice, then change it based on a governor’s order, then maintain that its advice didn’t mean anything. If the law and regulation were so clear, Renick said, the department should have referred people to the language of the regulation instead of offering its initial interpretation.

As a result of the judge’s decision, the labor department plans to investigate 21 complaints it has received about businesses underpaying tipped employees between Jan. 1 and March 14, department spokeswoman Tammy Cavender said.

The department can determine whether an employee was not paid enough, but it has no legal authority to force a business to follow its decision; rather, an employee must sue for back pay. Joyce cited that fact while concluding that the department wasn’t a proper defendant for the lawsuit.

Jim Kottmeyer helped write the minimum wage ballot measure for the group Give Missourians a Raise Inc. He said there are about 62,500 tipped employees in Missouri, though it is unclear how many have been paid less than $3.25 an hour since Jan. 1.

If an employee worked 40 hours a week and received $2.13 an hour until Blunt ordered the department to adopt the $3.25 an hour standard in mid-March, the employee would be due about $475 in back pay.

“We certainly believed when reading the law that it was clear, and we’re pleased that the courts validated that interpretation,” Kottmeyer said Tuesday. “Our hope is that restaurant owners and managers move forward and actually pay the back wages they owe.”


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