I’m training as a server and getting $2.13 with no tables. Is that legal?
The short answer
Example
Your first week is three 6-hour training shifts, 18 hours, at $2.13 an hour. You follow a trainer and don’t get your own tables (illustrative).
| No tips at all | Trainer shares $40 with you | |
|---|---|---|
| Cash wage (18 × $2.13) | $38.34 | $38.34 |
| Tips you actually received | $0 | $40.00 |
| Federal minimum for the week (18 × $7.25) | $130.50 | $130.50 |
| Your employer must add | $92.16 | $52.16 |
- The check is weekly. DOL looks at whether your cash wage plus the tips you actually received reach $7.25 an hour for the workweek, not shift by shift.
- Only tips you actually got count. Tips your trainer kept don’t count toward your minimum.
- Weeks with more than 40 hours add overtime, figured on the full $7.25. See overtime at $2.13.
Not tax or legal advice. The hours and tips are made up. The $2.13 and $7.25 are the federal figures; your state may set higher ones.
Plain English
Training is work time
Federal regulations list four conditions that all have to be true before training can go unpaid: it’s outside your regular hours, it’s truly voluntary, it isn’t directly related to your job, and you do no productive work during it. Server training fails every one. It’s scheduled, it’s required, it teaches the job you were hired for, and trainees often run food and help with tables. Training is “not voluntary” if your employer requires it, or if you’re led to believe your job depends on it.
The $2.13 rule still has a floor
An employer can pay $2.13 an hour only if your tips make up the rest. DOL’s tipped-employee fact sheet says that if your tips plus your cash wage don’t equal $7.25 an hour in each workweek, “the employer must make up the difference.” Only tips you actually received count. So a training week with no tables and no tip share still has to come out to at least $7.25 an hour.
Who keeps the tips from a training shift
Federal law doesn’t address trainers and trainees by name. What it does say: your employer can’t keep any part of the tips, and managers and supervisors can’t take any either. Your employer can require servers to share tips in a pool with other employees who customarily and regularly receive tips, and it has to tell you the required contribution. So a trainer keeping all the tips from a shift, or splitting them with you, can both be allowed. The minimum-wage floor above protects you either way.
What to ask before you start
- How many training shifts, and what’s my pay rate during them?
- Do I get any share of the tips while I’m training? How is it split?
- When do I get my own section?
Ask for the answers by text or email so you have them in writing. Then log each training shift: date, hours, and any tips you got.
If the pay doesn’t add up
Start with a short, polite question to your manager. If that doesn’t fix it, DOL’s Wage and Hour Division takes calls at 1-866-487-9243; see How do I report my restaurant for taking tips? Your state may have a higher minimum wage or other rules; DOL keeps a list of state labor offices.
Common mistakes
- Assuming “training” means unpaid. Required training for your job is work time.
- Counting tips your trainer kept as your tips for the minimum-wage check.
- Not writing down training hours because there were no tips to log.
- Staying in “training” for weeks while running a full section, without asking when the training rate ends.
Official sources
- 29 CFR 785.27, Lectures, meetings and training programs: generalecfr.gov
- 29 CFR 785.28, Involuntary attendanceecfr.gov
- 29 CFR 785.29, Training directly related to employee’s jobecfr.gov
- U.S. Department of Labor, Fact Sheet #15: Tipped Employees Under the FLSAdol.gov
- U.S. Department of Labor, Fact Sheet #22: Hours Worked Under the FLSAdol.gov
- 29 CFR 531.54, Tip poolingecfr.gov
- U.S. Department of Labor, Wage and Hour Division: State Labor Officesdol.gov
Last verified:
Checked 29 CFR 785.27 through 785.32, 29 CFR 531.52, 531.54, and 531.59, DOL Fact Sheet #15, and DOL Fact Sheet #22 (revised July 2008).
Still open: No federal rule addresses how tips from a training shift are split between trainer and trainee, or who counts as having “received” a tip on a table the trainee served. A long “training” period at $2.13 may also raise tip-credit questions this page doesn’t settle.