Yes, but only if that side work comprises more than 20% of the work day. This is known as the 80/20 rule. According to this rule, servers can be paid the tipped minimum wage for all hours worked unless they spend 20% or more of their working time performing side work. In that situation, they have to be paid at least the standard minimum wage for the time spent performing side work. What is and is not “side work,” isn’t always perfectly clear.

The Department of Labor first introduced the 80/20 Rule in 1998 in its Field Operations Handbook and ratified that rule in 2011, 2016, 2017, and 2018. After the latest ratification, the Department of Labor tried to soften the 80/20 Rule to be more employer friendly. At least one court has rejected that attempt. Belt v. P.F. Chang’s China Bistro, 401 F. Supp. 3d 512 (E.D. Penn.).

In Belt v. P.F. Chang’s, a class of servers brought a minimum wage claim, arguing that P.F. Chang’s should have paid them at least the standard/basic minimum wage for the time they spent on side work as that time comprised at least 20% of their workday. That side work included:

• Setting up, filling, breaking down and cleaning the lemonade machine;

• Preparing and affixing labels to various sauces;

• Replenishing the sugar caddies;

• Ensuring that chopsticks were placed on each table;

• Running cookware, garnishes, and sauces from the back of the house to the front;

• Sweeping the restaurant floor;

• Bagging and taking out the trash;

• Collecting and organizing dirty dishes;

• Loading and operating the dishwasher;

• Retrieving dishes from the dishwashing rack and handing them to the cooks;

• Rolling silverware;

• Polishing silverware, dishes, and glasses;

• Organizing silverware, dishes, and glasses for distribution; and

• Dusting, cleaning and polishing tables, booths, and chairs.

That case is still winding through the court system and was recently certified as a collective action for P.F. Chang’s servers in Alabama, Arkansas, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Mississippi, Missouri, Nebraska, New Jersey, New Mexico, North Carolina, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Utah, Virginia, and Wisconsin.

In our view, it’s fair to pay servers the tipped minimum wage when they are generating tips. It’s not fair to pay them that rate when they aren’t. The 80/20 rule tries to strike a balance between that idea of fairness and the idea that it’s unrealistic to parse a server’s working time by the minute. Here’s to hoping the courts continue to protect the rights of workers in the face of the current administration’s continued efforts to curtail them.