Recovering Stolen Tips in Delaware
My employer is taking my tips — here's what Delaware law says and what to do next.
Statute: Del. Code tit. 19, § 1103
Deadline: 7 days
Penalty: Employer may be liable for liquidated damages equal to the unpaid wages plus 10% of the amount due for each day wages remain unpaid, plus reasonable attorney fees
What is recovering stolen tips?
Wage theft is when your employer fails to pay you what you are legally owed. It is the most common labor violation in the United States — the Economic Policy Institute estimates that workers lose more than $50 billion per year to wage theft, exceeding all robberies, burglaries, and auto thefts combined.
Common forms of wage theft include: not paying overtime, paying below minimum wage, stealing tips, forcing off-the-clock work, misclassifying employees as independent contractors, and making illegal deductions from paychecks. The FLSA and state labor laws prohibit all of these practices.
What to Do If Your Employer Is Stealing Your Wages or Tips
Step 1: Keep your own records. Track hours worked, tips received, and pay received. Use a notebook, spreadsheet, or app — any contemporaneous record is valuable evidence.
Step 2: Compare your records against your pay stubs. Look for discrepancies: missing hours, lower tip amounts than you earned, unauthorized deductions, or overtime not paid at 1.5x.
Step 3: Raise the issue with your employer in writing. Email or text creates a documented record. State the specific discrepancy and the amount you believe you are owed.
Step 4: If your employer does not correct the issue, file a complaint with the DOL Wage and Hour Division at 1-866-487-9243 or online at dol.gov. You can also file with your state's labor department, which may have stronger protections.
Step 5: Consult an employment attorney. Many wage theft attorneys work on contingency (no upfront cost). Under the FLSA, you can recover back wages, an equal amount in liquidated damages (double damages), and attorney's fees.
How Delaware differs from federal law
Delaware provides protections for tipped workers and against wage theft:
- Tip credit allowed (19 Del. C. § 902): Delaware allows a tip credit. Employers may pay tipped employees a cash wage of $2.23/hr as long as the employee's tips bring total compensation to at least the full minimum wage of $13.25/hr (2024 rate). If tips do not make up the difference, the employer must pay the shortfall.
- Tips belong to the employee: Under both Delaware and federal law, tips are the property of the employee. Employers cannot confiscate tips or require employees to share tips with managers, supervisors, or owners.
- Tip pooling: Delaware allows valid tip pooling among employees who customarily receive tips. Managers and supervisors cannot participate in tip pools.
- Wage Payment and Collection Act (19 Del. C. § 1101 et seq.): Delaware's wage payment law requires employers to pay all earned wages on regular paydays. Failure to pay wages, including tips owed, is a violation. Employees can file complaints with the Delaware Department of Labor.
- Liquidated damages: Under Delaware law, employees who prevail in wage claims may recover unpaid wages plus liquidated damages and attorney's fees.
- Retaliation prohibited: Employers cannot retaliate against employees who file wage complaints or cooperate in wage investigations.
Additional steps in Delaware
File a wage claim with the Delaware Department of Labor, Office of Labor Law Enforcement at (302) 761-8200 or labor.delaware.gov. You can also file a federal FLSA complaint with the U.S. Department of Labor at 1-866-487-9243.
What you should NOT do
Don't rely on your employer's time records alone. Employers sometimes alter timekeeping records. Your personal records are admissible evidence and can contradict employer records.
Don't wait too long to file. The FLSA has a 2-year statute of limitations (3 years for willful violations). State deadlines vary. File as soon as you identify a problem.
Don't assume small amounts aren't worth pursuing. Wage theft often accumulates over months or years. A few dollars per shift adds up to thousands. Class action lawsuits are also common for systemic violations.
Don't fear retaliation. It is illegal for your employer to fire, demote, or punish you for filing a wage complaint. If they do, you have an additional retaliation claim.
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Generate your unpaid wages →This page is general legal information for Delaware, not legal advice for your specific situation. Laws change, and how a statute applies depends on facts we don't know. For advice on your matter, consult a licensed attorney in Delaware.