Judge orders state to keep silent on tipped workers' back pay issue

JEFFERSON CITY, Mo. -- A judge has ordered the state labor department to remain neutral -- for now -- on whether food servers and other tipped employees are due a retroactive pay increase under Missouri's new minimum-wage law.

The hourly wage due to tipped employees has been a point of contention since Missouri's minimum wage rose from $5.15 to $6.50 an hour Jan. 1 as a result of a ballot measure approved last year by voters.

Supporters of the ballot measure claim that, under state law, tipped employees are due half the minimum wage, or $3.25 an hour.

The state Department of Labor and Industrial Relations originally interpreted tipped employees to still be covered by the federal minimum of $2.13 an hour, so long as their tips pushed their total pay to at least $6.50 an hour.

But that changed March 14, when Gov. Matt Blunt declared the department had gotten it wrong and ordered it to instead advise employers to pay $3.25 an hour to their tipped workers.

Several restaurants sued the labor department last month, seeking a declaration that the proper wage was $2.13 an hour and, if that's not the case, an exemption from providing back pay for the $3.25 threshold between Jan. 1 and the date of Blunt's decision.

Cole County Circuit Judge Patricia Joyce issued a preliminary injunction Tuesday prohibiting the department from taking a position or offering advice on whether tipped employees are due back pay.

But Joyce did not bar the department from advising employers to pay $3.25 an hour from March 14 onward. The judge has yet to address the proper pay level. She scheduled another hearing for May 18.

The lawsuit, filed on behalf of restaurants in Joplin and Columbia, is supported by the Missouri Restaurant Association. Their attorney, John Renick of St. Louis, called the injunction a positive step for restaurants.

To the contrary, it would be unfair to let restaurant owners deprive their employees of two-and-a-half months of appropriate pay, said Jim Kottmeyer, who helped write the ballot measure for the sponsoring group, Give Missourians a Raise Inc.

Although the injunction prohibits the labor department from taking a position, it does not prohibit tipped employees from bringing their own lawsuits against their employers seeking to collect back pay.

The lawsuit by Granny Schaffer's Family Restaurant and Johnny's Beanery claims that, after Blunt's directive, the state labor department has advised employers that the $3.25 an hour wage should be applied retroactively to Jan. 1.

But department spokeswoman Tammy Cavender said Friday that the department has taken no position on whether back wages are due.

"The recovery of the back wages is between the employer and the employee," she said.