Thursday, June 29, 2017

[Korean] 조지아 최저임금법

미국연방법인 공정근로기준법 Fair Labor Standards Act (FLSA)가 정의하는 covered nonexempt employees의 최저임금은 federal minimum wage는 시간당 $7.25입니다.  (effective July 24, 2009). 

그리고 각주마다 각각 최저임금에 관한 주법 State minimum wage laws가 있습니다.  

만약 근로자에게 이 주법과 연방법을 모두 적용해야하는 상황이라면 
둘중 더 금액이 높은 최저임금법의 혜택을 적용받습니다.

예를 들어 조지아의 주법은 회사의 근로자 Employees의 숫자가 6명 이상인 Employer의 경우, 최저임금을 $5.15로 정합니다.

따라서 미국연방법인 공정근로기준법 Fair Labor Standards Act (FLSA)가 정의하는 covered nonexempt employees의 최저임금 federal minimum wage 시간당 $7.25을 적용하게 됩니다. 

이은경변호사는 근로자들에게 무료전화상담서비스를 제공합니다. (678-878-4200)



[조지아 노동법 전문 변호사 이은경, 무단 전재 및 재배포 금지]

[Attorney Ellen Eunkyung Lee, All rights reserved]
미국 조지아 가나법률사무소 이은경변호사

Cana Law, LLC Ellen Lee, Esq
3006 Clairmont Road Atlanta, Ga 30329
Office Phone : 678-302-1938
Text : 404-840-6816
Fax : 404-601-1391
Email: ellen@canalaw.com
Website: http://www.canalaw.com

[DoL Fact Sheet] Tipped Employees Under the Fair Labor Standards Act (FLSA)

This fact sheet provides general information concerning the application of the FLSA to employees who receive tips.
Characteristics
Tipped employees are those who customarily and regularly receive more than $30 per month in tips. Tips are the property of the employee. The employer is prohibited from using an employee’s tips for any reason other than as a credit against its minimum wage obligation to the employee (“tip credit”) or in furtherance of a valid tip pool. Only tips actually received by the employee may be counted in determining whether the employee is a tipped employee and in applying the tip credit.
Tip Credit: Section 3(m) of the FLSA permits an employer to take a tip credit toward its minimum wage obligation for tipped employees equal to the difference between the required cash wage (which must be at least $2.13) and the federal minimum wage. Thus, the maximum tip credit that an employer can currently claim under the FLSA section 3(m) is $5.12 per hour (the minimum wage of $7.25 minus the minimum required cash wage of $2.13). Under certain circumstances, an employer may be able to claim an additional overtime tip credit against its overtime obligations.
Tip Pool: The requirement that an employee must retain all tips does not preclude a valid tip pooling or sharing arrangement among employees who customarily and regularly receive tips, such as waiters, waitresses, bellhops, counter personnel (who serve customers), bussers, and service bartenders. A valid tip pool may not include employees who do not customarily and regularly received tips, such as dishwashers, cooks, chefs, and janitors.
Requirements
The employer must provide the following information to a tipped employee before the employer may use the FLSA 3(m) tip credit:
1) the amount of cash wage the employer is paying a tipped employee, which must be at least $2.13 per hour;
2) the additional amount claimed by the employer as a tip credit, which cannot exceed $5.12 (the difference between the minimum required cash wage of $2.13 and the current minimum wage of $7.25);
3) that the tip credit claimed by the employer cannot exceed the amount of tips actually received by the tipped employee;
4) that all tips received by the tipped employee are to be retained by the employee except for a valid tip pooling arrangement limited to employees who customarily and regularly receive tips; and
5) that the tip credit will not apply to any tipped employee unless the employee has been informed of these tip credit provisions.
The employer may provide oral or written notice to its tipped employees informing them of items 1-5 above. An employer who fails to provide the required information cannot use the section 3(m) tip credit and therefore must pay the tipped employee at least $7.25 per hour in wages and allow the tipped employee to keep all tips received.
Employers electing to use the tip credit provision must be able to show that tipped employees receive at least the minimum wage when direct (or cash) wages and the tip credit amount are combined. If an employee's tips combined with the employer's direct (or cash) wages of at least $2.13 per hour do not equal the minimum hourly wage of $7.25 per hour, the employer must make up the difference.
Retention of Tips: A tip is the sole property of the tipped employee regardless of whether the employer takes a tip credit. [1] The FLSA prohibits any arrangement between the employer and the tipped employee whereby any part of the tip received becomes the property of the employer. For example, even where a tipped employee receives at least $7.25 per hour in wages directly from the employer, the employee may not be required to turn over his or her tips to the employer.
Tip Pooling: As noted above, the requirement that an employee must retain all tips does not preclude a valid tip pooling or sharing arrangement among employees who customarily and regularly receive tips. The FLSA does not impose a maximum contribution amount or percentage on valid mandatory tip pools. The employer, however, must notify tipped employees of any required tip pool contribution amount, may only take a tip credit for the amount of tips each tipped employee ultimately receives, and may not retain any of the employees' tips for any other purpose.
Dual Jobs: When an employee is employed by one employer in both a tipped and a non-tipped occupation, such as an employee employed both as a maintenance person and a waitperson, the tip credit is available only for the hours spent by the employee in the tipped occupation. The FLSA permits an employer to take the tip credit for some time that the tipped employee spends in duties related to the tipped occupation, even though such duties are not by themselves directed toward producing tips. For example, a waitperson who spends some time cleaning and setting tables, making coffee, and occasionally washing dishes or glasses is considered to be engaged in a tipped occupation even though these duties are not tip producing. However, where a tipped employee spends a substantial amount of time (in excess of 20 percent in the workweek) performing related duties, no tip credit may be taken for the time spent in such duties. .
Service Charges: A compulsory charge for service, for example, 15 percent of the bill, is not a tip. Such charges are part of the employer's gross receipts. Sums distributed to employees from service charges cannot be counted as tips received, but may be used to satisfy the employer's minimum wage and overtime obligations under the FLSA. If an employee receives tips in addition to the compulsory service charge, those tips may be considered in determining whether the employee is a tipped employee and in the application of the tip credit.
Credit Cards: Where tips are charged on a credit card and the employer must pay the credit card company a percentage on each sale, the employer may pay the employee the tip, less that percentage. For example, where a credit card company charges an employer 3 percent on all sales charged to its credit service, the employer may pay the tipped employee 97 percent of the tips without violating the FLSA. However, this charge on the tip may not reduce the employee's wage below the required minimum wage. The amount due the employee must be paid no later than the regular pay day and may not be held while the employer is awaiting reimbursement from the credit card company.
Youth Minimum Wage: The 1996 Amendments to the FLSA allow employers to pay a youth minimum wage of not less than $4.25 per hour to employees who are under 20 years of age during the first 90 consecutive calendar days after initial employment by their employer. The law contains certain protections for employees that prohibit employers from displacing any employee in order to hire someone at the youth minimum wage.
Typical Problems
Minimum Wage Problems:
  • Where an employee does not receive sufficient tips to make up the difference between the direct (or cash) wage payment (which must be at least $2.13 per hour) and the minimum wage, the employer must make up the difference.
  • Where an employee receives tips only and is paid no cash wage, the full minimum wage is owed.
  • Where deductions for walk-outs, breakage, or cash register shortages reduce the employee’s wages below the minimum wage, such deductions are illegal. When an employer claims an FLSA 3(m) tip credit, the tipped employee is considered to have been paid only the minimum wage for all non-overtime hours worked in a tipped occupation and the employer may not take deductions for walkouts, cash register shortages, breakage, cost of uniforms, etc., because any such deduction would reduce the tipped employee’s wages below the minimum wage.
  • Where a tipped employee is required to contribute to a tip pool that includes employees who do not customarily and regularly receive tips, the employee is owed the full $7.25 minimum wage and reimbursement of the amount of tips that were improperly utilized by the employer.
Overtime Problems:
  • Where the employer takes the tip credit, overtime is calculated on the full minimum wage, not the lower direct (or cash) wage payment. The employer may not take a larger FLSA 3(m) tip credit for an overtime hour than for a straight time hour. Under certain circumstances, an employer may be able to claim an additional overtime tip credit against its overtime obligations.
  • Where overtime is not paid based on the regular rate including all service charges, commissions, bonuses, and other remuneration.
Where to Obtain Additional Information
For additional information, visit our Wage and Hour Division Website: http://www.wagehour.dol.gov and/or call our toll-free information and helpline, available 8 a.m. to 5 p.m. in your time zone, 1-866-4USWAGE (1-866-487-9243).
This publication is for general information and is not to be considered in the same light as official statements of position contained in the regulations.


[1] In Oregon Restaurant and Lodging Ass'n et al. v. Solis, 948 F. Supp. 2d 1217 (D. Or. 2013), the U.S. District Court for the District of Oregon declared the Department's 2011 regulations that limit an employer's use of its employees' tips when the employer has not taken a tip credit against its minimum wage obligations to be invalid, and imposed injunctive relief. On February 23, 2016, the Court of Appeals for the Ninth Circuit reversed the judgment entered by the district court. See Oregon Restaurant and Lodging Ass’n et al. v. Perez, 816 F.3d 1080 (2016), pet. for reh’g and reh’g en banc denied (Sept. 6, 2016). Notwithstanding the Ninth Circuit’s decision, the Department continues to be constrained by the injunctive relief entered by the district court until the Ninth Circuit issues its mandate, which formally notifies the district court of the court of appeals’ decision. On September 13, 2016, the Ninth Circuit issued a Stay of the Mandate “until final disposition [of this litigation] by the Supreme Court.” Oregon Restaurant and Lodging Ass’n et al. v. Perez, No. 13-35765 (9th Cir., Sept. 13, 2016).
For these reasons, the Department is currently prohibited from enforcing its tip retention requirements against the Oregon Restaurant and Lodging Association plaintiffs (which include several associations, one restaurant, and one individual) and members of the plaintiff associations that can demonstrate that they were a member on June 24, 2013. The plaintiff associations in the Oregon litigation were the National Restaurant Association, Washington Restaurant Association, Oregon Restaurant and Lodging Association, and Alaska Cabaret, Hotel, Restaurant, and Retailer Association. As a matter of enforcement policy, the Department decided that while the injunction is in place it will not enforce its tip retention requirements against any employer that has not taken a tip credit in jurisdictions within the Ninth Circuit. The Ninth Circuit has appellate jurisdiction over the states of California, Nevada, Washington, Oregon, Alaska, Idaho, Montana, Hawaii, and Arizona; Guam; and the Northern Mariana Islands.
- https://www.dol.gov/whd/regs/compliance/whdfs15.htm -

[DoL] Minimum Wages for Tipped Employees

January 1, 2017

 


Purple - State requires employers to pay workers full state minimum wage before tips
 
State requires employers to pay tipped employees full state minimum wage before tips.
Green - State requires employers to pay workers above federal tipped minimum wage
 
State requires employers to pay tipped employees a minimum cash wage above the minimum cash wage required under the federal Fair Labor Standards Act ($2.13/hour).
blue - State requires employers to pay workers as low as federal tipped minimum wage ($2.13/hr.)
 
State minimum cash wage payment is the same as that required under the federal Fair Labor Standards Act ($2.13/hour).


Table of Minimum Hourly Wages for Tipped Employees, by State
Jurisdiction
Basic Combined Cash & Tip Minimum Wage Rate
Maximum Tip Credit Against Minimum Wage
Minimum Cash Wage 1
Definition of Tipped Employee by Minimum Tips received (monthly unless otherwise specified)
FEDERAL: Fair Labor Standards Act (FLSA)
$7.25
$5.12
$2.13
More than $30
State requires employers to pay tipped employees full state minimum wage before tips
Alaska


$9.80
 
California



$10.00

$10.50
 
Applicable to employers with 25 employees or less
Applicable to employers with 26 employees or more
Guam


$8.25
 
Minnesota:
    
Large employer 2


$9.50, effective August 1, 2016
 
Small employer 2


$7.75, effective August 1, 2016
 
Montana:
    
Business with gross annual sales over $110,000


$8.15
 
A business not covered by the Fair Labor Standards Act whose gross annual sales are $110,000 or less may pay $4.00 per hour. However, if an individual employee is producing or moving goods between states or otherwise covered by the federal Fair Labor Standards Act, that employee must be paid the greater of either the federal minimum wage or Montana's minimum wage.


$4.00
 
Nevada10
With no health insurance benefits provided by employer and received by employee


$8.25

With health insurance benefits provided by employer and received by employee


$7.25

Oregon


$9.75
 
Washington


$11.00
 
State requires employers to pay tipped employees a minimum cash wage above the minimum cash wage required under the federal Fair Labor Standards Act ($2.13/hour)
Arizona
$10.00
$3.00
$7.00
Not specified
Arkansas
$8.50
$5.87
$2.63
More than $20
Colorado
$9.30
$3.02
$6.28
More than $30
Connecticut
$10.10


At least $10 weekly for full-time employees or $2.00 daily for part-time in hotels and restaurants. Not specified for other industries.
Hotel, restaurant

36.8% ($3.72)
$6.38
 
Bartenders who customarily receive tips

18.5% ($1.87)
$8.23
 
Delaware
$8.25
$6.02
$2.23
More than $30
District of Columbia*
$11.50
$8.73
$2.77
Not specified
Florida
$8.10
$3.02
$5.08

Hawaii
$9.25
$0.75
$8.50
More than $20
*Hawaii: Tip Credit in Hawaii is permissible if the combined amount the employee receives from the employer and in tips is at least $7.00 more than the applicable minimum wage.
*District of Columbia: As a result of the "Fair Shot Minimum Wage Amendment Act of 2016," the District of Columbia will increase the minimum cash tip in proportions beginning July 1, 2017.
Idaho
$7.25
$3.90
$3.35
More than $30
Illinois
$8.25
40% of the applicable minimum wage
$4.95
$20
Iowa
$7.25
$2.90
$4.35
$30 or more
Maine
$9.00, effective 01/07/2017
$4.00
$5.00
More than $30
Maryland
$8.75
$5.12
$3.63
More than $30
Massachusetts
$11.00
$7.25
$3.75
More than $20
Michigan
$8.90
$5.52
$3.38
Not specified
Missouri
$7.70
50% ($3.85)
$3.85
Not specified
New Hampshire
$7.25
55% of the applicable minimum wage
45% of the applicable minimum wage
More than $30
New York




Information on New York requirements for the payment of tipped employees is available at https://labor.ny.gov/formsdocs/factsheets/pdfs/p717.pdf.
North Dakota
$7.25
33% of the applicable minimum wage
$4.86
More than $30
Ohio 5

Employers with annual gross receipts of $299,000 or more
$8.15
$4.07
$4.08
More than $30
Oklahoma 6
$7.25
$5.12
$2.13
Not specified
Pennsylvania
$7.25
$4.42
$2.83
More than $30
Rhode Island
$9.60
$5.71
$3.89, effective 01/01/17
Not specified
South Dakota
$8.65
50% ($4.325) 3
$4.325
More than $35
Vermont
An employee of a hotel, motel, tourist place, or restaurant who customarily and regularly receives more than $120.00 per month in tips for direct and personal customer service.
$10.00
$5.00
$5.00
More than $120
 
Virgin Islands
$8.35
$5.01
40% ($3.34)
Not specified
Wisconsin 8
$7.25
$4.92
$2.33
Not specified
West Virginia 7
$8.75
70% ($6.13)
$2.62
Not specified
State minimum cash wage payment is the same as that required under the federal Fair Labor Standards Act ($2.13/hr.) 
Alabama 9


$2.13

Georgia 9


$2.13

Indiana
$7.25
$5.12
$2.13
Not specified
Kansas
$7.25
$5.12
$2.13
More than $20
Kentucky
$7.25
$5.12
$2.13
More than $20
Louisiana 9


$2.13

Mississippi 9


$2.13

North Carolina 4
$7.25
$5.12
$2.13
More than $20
Nebraska
$9.00
$6.87
$2.13
Not specified
New Jersey
$8.44
$6.31
$2.13
Not specified
New Mexico
  $7.50
  $5.37
$2.13
More than $30
Puerto Rico
$7.25
$5.12
$2.13
More than $30
South Carolina 9


$2.13

Tennessee 9


$2.13

Texas
$7.25
$5.12
$2.13
More than $20
Utah
$7.25
$5.12
$2.13
More than $30
Virginia
$7.25
$5.12
$2.13
Not specified
Wyoming
$5.15
$3.02
$2.13
More than $30

Some states set subminimum rates for minors and/or students or exempt them from coverage, or have a training wage for new hires. Such differential provisions are not displayed in this table.
FOOTNOTES
1 Other additional deductions are permitted, for example for meals and lodging, except as noted in footnote 8.
2 Minnesota. Effective August 1, 2014, a large employer means an enterprise whose gross volume of sales made or business done is not less than $500,000. A small employer means an enterprise whose gross volume of sales made or business done is less than $500,000.
3 In New Jersey and South Dakota, the listed maximum credit is the total amount allowable for tips, food and lodging combined, not for tips alone as in other states.
In New Jersey, in specific situations where the employer can prove to the satisfaction of the Department of Labor and Workforce Development that the tips actually received exceed the creditable amount, a higher tip credit may be taken.
4 North Carolina. Tip credit is not permitted unless the employer obtains from each employee, either monthly or each pay period, a signed certification of the amount of tips received.
5 Ohio. For employees of employers with gross annual sales of less than $299,000, the state minimum wage is $7.25 per hour. For these employees, the state wage is tied to the federal minimum wage of $7.25 per hour which requires an act of Congress and the President's signature to change.
6 Oklahoma. For employers with fewer than 10 full-time employees at any one location who have gross annual sales of $100,000 or less, the basic minimum rate is $2.00 per hour.
7 West Virginia. The state minimum wage law applies only to employers with six or more employees and to state agencies.
8 Wisconsin. $2.13 per hour may be paid to employees who are not yet 20 years old and who have been in employment status with a particular employer for 90 or fewer consecutive calendar days from the date of initial employment.
9 The following states do not have state minimum wage laws: Alabama, Louisiana, Mississippi, South Carolina, and Tennessee. Georgia has a state minimum wage law, but it does not apply to tipped employees.
10 Nevada. The state minimum wage rates may be increased annually based upon changes in the cost of living index, which would in turn increase the minimum cash wage for tipped employees.
Prepared By:
Division of Communications
Wage and Hour Division
U.S. Department of Labor
This document was last revised January 1, 2017.
The Wage and Hour Division tries to ensure that the information on this page is accurate but individuals should consult the relevant state labor office for official information.
- https://www.dol.gov/whd/state/tipped.htm -

인사글

[About] Ellen Eunkyung Lee, Esq. (이은경변호사)

Attorney Ellen Eunkyung Lee ("Lee") grew up in Korea, and majored in English Literature and Sociology at Yonsei University. ...