Do you earn tips? Plenty of employees in Hawaii do, including those who wait tables, serve and mix drinks, open doors, carry luggage, clean hotel rooms, or provide other services, from moving furniture to delivering newspapers. In fact, some employees earn more in tips from satisfied customers than in straight wages paid by their employers.
When you receive tips as part of your compensation, your legal rights under wage and hour laws become a bit more complicated. The rules about what counts as a tip, how much your employer must pay you, and whether you have to contribute to a tip pool (among other things) all depend on the laws of your state. Although federal law also covers these issues, employers must follow whichever law—federal, state, or even local—is the most generous to employees.
Here's what you need to know about federal and Hawaii legal protections for employees who receive tips. You can find out more about Hawaii minimum wage, tip rules, overtime standards, and other wage and hour issues at the Hawaii Department of Labor and Industrial Relations.
The basic rule of tips, under federal law and state law, is that they belong to the employee, not the employer. Employers may not require employees to hand over their tips unless one of these exceptions applies:
Minimum wage laws protect all employees, whether or not they receive tips. Employees are entitled to earn the full minimum wage per hour as set by federal or state law. Currently, the federal minimum wage is $7.25 an hour. Hawaii’s minimum wage is $10.10 as of 2018.
Under federal law and in most states, employers may pay tipped employees less than the minimum wage, as long as employees earn enough in tips to make up the difference. This is called a "tip credit." The credit is the amount the employer doesn't have to pay, so the applicable minimum wage (federal or state) less the tip credit is the least the employer can pay tipped employees per hour. If an employee doesn’t make enough in tips during a given workweek to earn at least the applicable minimum wage for each hour worked, the employer has to pay the difference.
Hawaii allows tip credits, but has some additional rules. Employers may take a tip credit for employees who make at least $20 per month in tips. In 2018, the maximum tip credit is $0.75 per hour. This means that employers must pay tipped employees at least $9.35 per hour. And, employers may only take advantage of the maximum tip credit if the employee still makes at least $7 per hour over the state minimum wage (which is equal to $17.10 in 2018). In other words, employees must average at least $7.75 per hour in tips in order for the employer to pay only $9.35 in hourly wages.
If an employee makes less than $7.75 in tips, the employer may only take a portion of the $0.75 tip credit, to ensure that the employee makes at least $17.10 per hour. For example, if the employee makes $7.25 in tips per hour, the employer may pay $9.85 in hourly wages (which means the employer takes a tip credit of $0.25 only).
Some employees have dual jobs, in which they spend some of their shift doing non-tipped work. Under Hawaii law, an employer may take a tip credit only for those hours an employee spends on tipped work. For example, if a waitress spends an hour before her shift setting up, six hours waiting tables, and another hour cleaning up, the employer could take a tip credit only for the six hours she actually spent on tipped work. For the other two hours, the employer would have to pay the full minimum wage.
Many states allow tip pooling or “tipping out.” All employees subject to the pool have to chip in a portion of their tips, which are then divided among a group of employees. The employee must be able to keep at least the full minimum wage. (In other words, if the employer takes a tip credit, the employer can only count the tips the employee gets to take home against its minimum wage obligation.)
According to the federal Department of Labor, only employees who regularly receive tips can be part of the pool. Employees must receive a written notice regarding the tip pool. Employees can't be required to share their tips with employees who don't usually receive their own tips, like dishwashers or cooks. And no employers are allowed in the pool: Tips from a tip pool can't go to the employer or, in some states, managers or supervisors.
Right now, Hawaii and the other states in the Ninth Circuit of the federal judiciary (a geographical region that includes the Pacific states) are in a special situation. In 2013, a federal district court in Oregon decided that federal rules on tip pooling apply only if the employer takes a tip credit. Under this ruling, employers who don’t (or can’t) take a tip credit may handle tips and tip pooling as they wish, including requiring employees to share their tips with the back of the house.
Because of this controversy, the federal Department of Labor has said that it will not enforce its tip rules in states in the Ninth Circuit until this issue is decided once and for all. This means Hawaii employees whose employer does not take a tip credit may have to participate in a tip pool with employees who don’t receive their own tips or provide service to customers, at least for the time being.
It's not as easy as you might think to figure out exactly how much of what a customer pays is a "tip." If the customer pays in cash and tipping is voluntary, whatever amount the customer leaves over and above the charge for products or services (plus tax) is a tip. However, if the employer imposes a mandatory service charge, or the customer pays by credit card, the rules might be different.
Some restaurants tack a “mandatory service charge” on to bills for large tables of diners, private parties, or catered events. Under federal law and in most states, this isn't considered a tip. Even if the customer thinks that money is going to you and doesn't leave anything extra on the table, your employer can keep any money designated as a "service charge." The law generally considers this part of the contract between the patron and the establishment, not a voluntary acknowledgment of good service by an employee. Many employers give at least part of these service charges to employees, but that's the employer's choice: Employees have no legal right to that money.
A couple of states have different rules, intended to make sure that customers know whether their money is going to the employer or the server. Hawaii is one of them: Hawaii employers that use mandatory service charges for the sale of food or beverages must either pay that money to employees as tip income or clearly disclose to the customer that the service charge will be used for expenses and costs other than employee tips and wages.
A 2014 rule change by the Internal Revenue Service has created a significant incentive for employers to stop imposing mandatory service charges, if the employer hands any of that money over to employees. Any portion of a mandatory service charge that the employer pays out to employees must be treated as wages, not tips. This means the employer must withhold and pay Social Security and Medicare (FICA) tax on these amounts, may not claim a credit against its tax obligations for these amounts (as it can for tips), and must include them as part of the employee’s hourly wage when determining overtime payments, among other things.
The rule applies only to mandatory service charges. For the amount to count as a tip rather than a service charge, all of the following must be true:
State rules differ as to whether employees are entitled to the full amount of a tip left by credit card. If the employer has to pay the credit card company a processing fee, some states allow the employer to subtract a proportionate amount of the tip to cover the employee’s “share” of the fee. For example, if the credit card company charges a 3% fee, the employer could legally reduce the employee’s tip by 3% as well.
Hawaii law doesn’t address the issue of credit card processing fees.