Is Withholding Tips Illegal in Virginia?

Is withholding tips illegal in Virginia? A large portion of Virginia employees who wait tables, serve or mix drinks, open doors, clean hotel rooms, or provide other services, earn tips. In fact, some employees earn more tips than they do wages.

If you receive tips as part of your compensation, your legal rights under the wage and hour laws are a bit more complex. This creates many questions. What counts as a tip? How much does your employer have to pay you? Do you have to contribute to a tip pool?

Tip Basics

While most of these laws will depend on your state, federal and state law dictates that they belong to the employee, not the employer. Your employer may not require you to hand over tips unless one of the following exceptions applies.

Tip Credit

State law allows the employer to take a tip credit. This means that the employer counts all or part of an employee’s tips toward their minimum wage obligations. So, even though the employer doesn’t technically “take” the employee’s tips, the employer gets to count some tips as though the employer paid them directly to the employee. Virginia allows employers to take a tip credit.

Tip Pools

Under federal law, and in most states, employees may be required to pay part of their tips into a tip pool. This is then shared with other employees. Employees can’t be required to pay more into the pool than is reasonable, and the employee gets to keep at least the full minimum wage.

Dual Jobs

Some employees have dual jobs, meaning they spend some time doing non-tipped work. If an employee performs related non-tipped duties at the same time as performing tipped duties, the employer can take a tip credit for the time spent on those non-tipped duties.

For example, a waitress spends seven hours of her eight-hour shift waiting tables, but the last hour is spent stocking service stations, cleaning, and making desserts. The employer can claim a tip credit for all eight hours of the shift.

Is Withholding Tips Illegal in Virginia

Withholding tips is a form a wage theft, and it is illegal. If you believe that your employer is withholding tips that you are entitled to, you should speak to an attorney. Contact Cook, Criag, and Francuzenko today to learn more.