Featured: National Waiters and Waitresses Day, scheduled for Tuesday, May 21, 2019, is an opportunity to thank the front-of-house staff for the work they do to make dining experiences special.
Photograph: NationalToday.com
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Measure that could save tipped employees hundreds, if not thousands, of dollars annually in lost wages, approved by Texas House, says Rep. Canales
By DAVID A. DÍAZ
[email protected]
House Bill 133, which would prohibit an employer from keeping any portion of a gratuity paid to or left for a tipped employee – potentially saving such workers hundreds and possibly thousands of dollars a year in lost wages – has been approved by the Texas House of Representatives, according to Rep. Terry Canales, D-Edinburg.
“House Bill 133 would ensure all of our service industry workers who receive tips from customers get to keep all of those tips,” said Canales. “Most Texans have no idea that when they include a tip on a credit card, many restaurants use part of that gratuity (tip) to pay the transaction processing fees which should be the responsibility of the business. With an estimated 15 percent of waiters and waitresses living in poverty, we must work to ensure that service industry workers are protected from this practice.”
A gratuity (tip) is generally defined as a gift of money, over and above payment due for service, as to a waiter or bellhop.
Labor Code sec. 62.052 defines a “tipped employee” as an employee engaged in an occupation in which the employee customarily and regularly receives more than $20 a month in tips.
“Every time a business is paid with a debit card or credit card, that firm must pay a fee for that financial service,” Canales explained. “But for waitpersons in restaurants – those professionals who provide excellent service and depend on gratuities to make a living – it is unfair if employers pay that fee from the worker’s tips.”
Canales, who also serves as Chairman, House Committee on Transportation, is the main author of HB 133, which was approved by the full House on Wednesday, May 1, 2019, by the following vote: 88 Yeas, 54 Nays, 2 Present, not voting.
The author is the legislator who files a bill and guides it through the legislative process (also called the primary author).
HB 103 still must be approved by the Texas Senate and by Gov. Greg Abbott before the end of the current regular session of the Legislature, which winds up on Monday, May 27, 2019.
Rep. Ana-María Ramos, D-Richardson, and Rep. John H. Bucy, III, D-Austin, are joint authors of HB 133.
In the House of Representatives, the joint author is a member authorized by the primary author of a bill or resolution to join in the authorship of the measure and have his or her name shown following the primary author’s name on official printings of the measure, on calendars, and in the journal. The primary author may authorize up to four joint authors.
Concerns have been raised regarding the ability of an employer to collect “swipe fees” from a tipped employee for tips paid with credit or debit cards, according to the House Research Organization, which is the nonpartisan arm of the House of Representatives.
The term swipe fees, also known as interchange fees, refers to the hidden cost paid by merchants to card-issuing banks and credit card companies for processing credit card and debit card transactions, according to InvestingAnswers.com.
(https://investinganswers.com/dictionary/s/swipe-fees)
“Today, employers – not all, but many – make the employee cover the ‘swipe fee’ which runs between one percent and three percent of the tip,” Canales explained. “Why should an employee have to foot the bill for the owners’ costs of doing business, especially, when the employee didn’t have any say in the choice or negotiation of those fees? HB 133 simply prevents an employer from passing along these fees to a tipped employee and makes sure an employer cannot take any part of the gratuities paid to the employee to cover swipe fees.”
It has been noted that, while each such fee may be small, they can quickly add up for a tipped employee. HB 133 seeks to address these concerns by prohibiting an employer from collecting or receiving any portion of a gratuity paid to or left for a tipped employee, the House Research Organization’s bill analyses also found.
The House District 40 lawmaker added when he first filed legislation on this issue four years ago, 15 percent of the nation’s 2.4 million waiters and waitresses lived in poverty, compared with seven percent of all other employees.
“Waiters and waitresses, who have many responsibilities which require multi-tasking skills, play a key role in the success of a restaurant, and they have my utmost respect,” Canales said. “I do not know how many Texas restaurants are taking money away from tips using this practice, but when my legislation becomes law, this injustice will be put to an end.”
According to supporters of Canales’ legislation, HB 133 would ensure that tipped employees kept all the tips they had worked to earn, including the swipe fee that some employers currently deduct when customers pay using a credit card or debit card. The decision to accept cards is up to the business, so the business should bear this cost.
Among those supporters who appeared before the House Committee on Labor Practices when public testimony on HB 133 was first taken on Tuesday, March 12, 2o19, were Ana González, Workers Defense Action Fund; René Lara, Texas AFL-CIO; Anna Bocchini, Equal Justice Center; Montserrat Garibay, Texas AFL-CIO; and Edward Sills.
“A few years ago, it was first brought to my attention that when gratuity (tip) is left with a credit or debit card, the whole tipped amount was sometimes not being given to the employee,” said the South Texas legislator. “With the growing trend by American consumers to use credit cards for purchases of more than $10, more Texas waiters and waitresses face an increased risk that they will lose more money by having the debit or credit card transaction fee taken from their tips.”
The federal minimum wage for covered nonexempt employees is $7.25 per hour effective July 24, 2009, according to the U.S. Department of Labor. The federal minimum wage provisions are contained in the Fair Labor Standards Act (FLSA). Many states also have minimum wage laws. In cases where an employee is subject to both the state and federal minimum wage laws, the employee is entitled to the higher of the two minimum wages.
The U.S. Department of Labor defines a tipped employee as any employee working in an occupation in which he or she regularly receives more than $30 a month in tips. But the U.S. Department of Labor leaves it up to the states to prohibit that deduction from the waitperson’s gratuity.
In Texas, federal law permits restaurants to pay tipped workers a base wage of $2.13 an hour as long as their weekly total of their the equivalent of a week’s salary at the federal minimum wage of $7.25 an hour.
If not, employers are supposed to make up the difference, although this requirement is difficult to enforce and there is considerable abuse, according to the Economic Policy Institute, which according to its website (http://www.epi.org/about/), is a 501(c)(3) non-profit American think tank based in Washington, D.C. that carries out economic research and analyzes the economic impact of policies and proposals. The EPI advocates for policies favorable for low- to moderate-income families in the United States.
The record vote by the House of Representatives on Canales’ HB 133 follows (a record vote is a list recorded in the journal of the individual vote of each member of a committee or full chamber on a particular motion or measure.):
Record Vote 851 (on HB 133)
Yeas — Allen; Anchia; Anderson; Ashby; Bailes; Beckley; Bernal; Biedermann; Blanco; Bowers; Burrows; Calanni; Canales; Clardy; Cole; Coleman; Collier; Cortéz; Davis, S.; Davis, Y.; Dean; Domínguez; Dutton; Fierro; Frank; Frullo; Geren; Gervin-Hawkins; Goldman; González , J.; González, M.; Goodwin; Guerra; Guillén; Gutiérrez; Hernández; Herrero; Hinojosa; Howard; Huberty; Hunter; Israel; Johnson, J.D.; Johnson, J.E.; King, K.; King, T.; Klick; Krause; Kuempel; López; Lozano; Lucio; Martínez; Martínez Fischer; Meza; Minjarez; Morales; Muñoz; Murphy; Neave; Nevárez; Oliverson; Ortega; Pérez; Ramos; Raymond; Reynolds; Rodríguez; Romero; Rose; Rosenthal; Sanford; Sheffield; Sherman; Springer; Stephenson; Talarico; Thierry; Thompson, E.; Thompson, S.; Turner, C.; Turner, J.; VanDeaver; Vo; Walle; Wilson; Wu; Zwiener.
Nays — Allison; Bell, C.; Bell, K.; Bohac; Bonnen; Buckley; Burns; Button; Cain; Capriglione; Craddick; Cyrier; Darby; Flynn; Harless; Harris; Hefner; Holland; Kacal; King, P.; Lambert; Landgraf; Lang; Larson; Leach; Leman; Metcalf; Meyer; Middleton; Miller; Morrison; Murr; Noble; Paddie; Parker; Patterson; Paul; Phelan; Price; Raney; Schaefer; Shaheen; Shine; Smith; Smithee; Stickland; Stucky; Swanson; Tinderholt; Toth; White; Wray; Zedler; Zerwas.
Present, not voting — Mr. Speaker; Moody(C). Absent, Excused — Johnson, E.
Absent, Excused, Committee Meeting — Longoria. Absent — Bucy; Deshotel; Farrar; Pacheco.
Statements on vote
When Record No. 851 was taken, I was shown voting yes. I intended to vote no.
Anderson
When Record No. 851 was taken, I was shown voting yes. I intended to vote no.
Biedermann
When Record No. 851 was taken, I was in the house but away from my desk. I would have voted yes.
Bucy
When Record No. 851 was taken, I was shown voting yes. I intended to vote no.
Dean
When Record No. 851 was taken, I was in the house but away from my desk. I would have voted yes.
Deshotel
When Record No. 851 was taken, I was shown voting yes. I intended to vote no.
Frank
When Record No. 851 was taken, I was shown voting no. I intended to vote yes.
Morrison
When Record No. 851 was taken, I was shown voting yes. I intended to vote no.
Oliverson
When Record No. 851 was taken, I was shown voting yes. I intended to vote no.
Springer
When Record No. 851 was taken, I was shown voting yes. I intended to vote no.
E. Thompson
When Record No. 851 was taken, I was shown voting yes. I intended to vote no.
The economic problems faced by tipped workers are explained in a series of short, easy-to-understand videos on tipped workers facts produced by Economic Policy Institute and available online at:
NATIONAL WAITERS AND WAITRESSES DAY SET FOR MAY 21, 2019
According to RandomActsofKindness.org:
May 21 is National Waiters and Waitresses Day in the United States. According to HolidayInsights.com, the day is for recognizing, “the value and importance of a good waiter or waitress”.
The origin of the date’s designation as a day to honor wait staff hasn’t been pinpointed, and it is not a commonly known date of celebration for many members of the general public. But, it’s a great idea.
The US’ version of National Waiters and Waitresses Day stresses taking time to show appreciation for those who spend long hours on their feet through harrying rushes and boring lolls, and who deal with a range of personalities, from the openly kind to the downright rude.
Numerous websites have been created for those who wait on customers to share their more memorable work-related incidents or to just vent. Other websites suggest that restaurant owners help support their employees on the May 21 by placing a sign in the window noting that it is National Waiters and Waitresses Day and inviting customers to come in and show their gratitude for hardworking servers.
And, as for us customers, how can they make that day a special occassion for those who truly deserve it?
Two pretty obvious ways are to be kind and to tip well.
Most people know the customary tip rate is 15 to 20 percent. What many people don’t know is how important that tip is to those working to earn it.
According to wiserwaitress.com, unlike other countries where servers are paid an hourly wage, wait staff in the United States make their money primarily through tips. And tip pooling might take place. This means that servers surrender all of their tips to a general tip pool that is distributed evenly among staff.
The point is that even if your waiter/waitress doesn’t seem up to par—by not tipping him or her, or by leaving a small gratuity—you might actually be taking money away from more hardworking, dedicated members of the staff.
Besides tipping well, a little kindness can go a long way. People aren’t always at their best when they’re hungry, but remember to smile, be patient, and thank your waiter/waitress.
Come to think of it, kindness, respect, and tipping generously shouldn’t be limited to just one day of the year. Maybe we should just strive to make sure the 21st is extra special with an even more plentiful display of each of the above.
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Rep. Terry Canales, D-Edinburg, who is the Chair of the House Committee on Transportation, represents House District 40 in Hidalgo County, which includes portions or all of Edinburg, Elsa, Faysville, La Blanca, Linn, Lópezville, McAllen, Pharr and Weslaco. He may be reached at his House District Office in Edinburg at (956) 383-0860 or at the Capitol at (512) 463-0426. For more on this and other Texas legislative news stories which affect the Rio Grande Valley metropolitan region, please log on to Titans of the Texas Legislature (TitansoftheTexasLegislature.com)
