Recovering Stolen Tips in Montana
My employer is taking my tips — here's what Montana law says and what to do next.
Statute: Mont. Code § 39-3-205
Deadline: 3 days
Penalty: Employer may be liable for the unpaid wages plus a penalty equal to the employee's wages from the due date up to a maximum of 110% of the wages owed, plus attorney fees and costs
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 Montana differs from federal law
Montana provides strong protections for tipped workers and against wage theft:
- No tip credit (MCA § 39-3-409): Montana is one of a small number of states that does not allow a tip credit. Tipped employees must be paid the full state minimum wage of $10.30/hr (2024 rate, adjusted annually by CPI) before tips. This is a significant protection compared to the federal $2.13/hr tipped minimum.
- Tips belong to the employee: Under both Montana and federal law, tips are the property of the employee. Employers cannot confiscate tips or require employees to share tips with managers or owners.
- Tip pooling: Montana allows valid tip pooling among employees who customarily receive tips. However, managers, supervisors, and employers cannot participate in or benefit from tip pools.
- Wage theft protections: The Montana Department of Labor and Industry (DLI) investigates wage claims, including failure to pay minimum wage, overtime, or earned wages. Workers can file complaints for unpaid wages.
- Wrongful Discharge Act: Montana's unique non-at-will framework (MCA § 39-2-901) means that employees who report wage theft are protected from termination without good cause — providing stronger retaliation protections than most states.
- Penalties: Employers who fail to pay wages owe the unpaid amount plus a penalty of up to 110% of the wages due, and the employee's reasonable attorney's fees (MCA § 39-3-206).
Additional steps in Montana
File a wage claim with the Montana Department of Labor and Industry (DLI) at (406) 444-6543 or dli.mt.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 Montana, 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 Montana.