BUDA, Texas (KXAN) — The popular restaurant in Buda, Valentina’s Tex Mex BBQ, is facing some backlash for its employee tip policy.

If employees broke certain rules, they’d be at risk of not receiving tips. The owners said the policy has since changed.

What was the policy?

A woman who said she is a former employee told NewsNation affiliate KXAN tips were taken at their discretion and when they were taken, they’d be taken for the entire week the incident happened.

According to a screenshot of the policy circulating on social media, tips could be taken for a number of reasons:

• An employee was late
• No call, no show
• Write-up during a shift
• An employee was fired
• An employee quit without two weeks’ written notice

Restaurant owner, Miguel Vidal, confirmed that was their policy.

“That was a screenshot of our handbook that we wrote in 2013 with the policy going in place in 2015 or 2016,” Vidal said.

But, he said it was never regularly enforced and that it hasn’t happened for a few years. Instead, Vidal claimed it was a last-resort measure.

“They got three verbal warnings and a write-up before anything was even discussed,” Vidal said.

The restaurant works in a pool system where everyone equally splits tips. He said their policy was meant to encourage people to pull their weight.

“Create an equal opportunity for everyone to make the money without someone just kind of taking advantage within the team,” Vidal said.

An attorney’s perspective

David Langenfeld, an attorney specializing in labor and employment law, said tips can’t be kept from an employee for any reason.

“You cannot exclude employees from the tip pool to discipline them,” Langenfeld said.

Langenfeld said the Fair Labor Standards Act was enacted by Congress in 1938. It established overtime pay and minimum wage, which today is $7.25 an hour.

“The exception is for tipped employees. They can be paid $2.13 an hour, so long as the tips they receive bring them up to at least minimum wage,” Langenfeld said.

Vidal said his employees are paid at least minimum wage. He said most average between $9-$16 an hour with tips included.

Still, Langenfeld says regardless of pay, tips can’t be kept from an employee.

“Even if the employee is paid minimum wage, the tips still belong to the employees and cannot be withheld,” Langenfeld said.

How has the policy changed?

As of a few days ago, Vidal said they updated their rules. Now, there’s nothing listed that prevents an employee from getting tips.

Vidal and his wife, Modesty, put out a statement on the restaurant’s social media pages along with the updated tip policy.

The couple recently expanded their south Austin food truck location to a new storefront in downtown Buda.

Vidal said the transition has been a lot to juggle, but he understands this should’ve been updated sooner.

“It’s something that should have been paid attention to more,” he said.