Restaurant Wage & Hour

Working as a waiter in a busy restaurant can be a difficult, but rewarding, job. Despite the fact that U.S. and NY minimum wage laws typically permit a rate of pay for service staff that is below the general minimum wage, these workers can earn a great deal of income through gratuities. Unfortunately, tip pools are very often manipulated by inserting ineligible non-service staff. Stealing from service staff typically benefits the owner, not the non-service staff. Owners often short the back-of the house staff by paying the lower minimum wage, not paying time-and one-half for overtime and outright time shaving.

This practice is more common than many people believe, which is why Joseph & Kirschenbaum LLP has made the unique wage and hour issues of restaurant and hospitality workers one of the focal points of our practice. Our New York City employment law attorneys have achieved many high-profile legal victories on behalf of both service and non-service staff—including a good number of multi-million-dollar payouts in class actions for hospitality workers.

Because tipping is a given in the United States, the Fair Labor Standards Act permits restaurant owners to pay their service staff as little as $2.13 per hour in actual wages. While many states, including New York, offer more generous hourly wages for tipped workers, tips still constitute the bulk of a typical server’s, busser’s or runners’ take-home pay.

In New York, the Hospitality Wage Order defines many of the rights service employees have concerning tips:

• Employers may require tip sharing and may set the rules by which pooled tips are allocated. However, the law strictly limits participation in tip pools to service staff. Managers and supervisors who do not actually serve food or drinks cannot participate. Likewise, kitchen staff, dishwashers and other back-of-the-house support workers who do not interact with customers cannot be included. The venue must reimburse service staff any monies wrongfully tipped out during the last six years and pay substantial penalties.

• Employers must promptly distribute gratuities that are automatically added to the bill.

• Employers cannot pay staff on salary or by the day or shift in order to avoid paying for overtime.

• Service staff in New York must receive a minimum hourly pay of $5.65. Non-service staff must earn at least $8.00 per hour.

• Employers may not keep for themselves any portion of a payment that legally constitutes a tip.

• There is a presumption that any charge that is not directly for food or drink is a tip and must be treated as such. This holds true unless the employer can demonstrate that the customer was made aware that the charge was not intended to be a tip.

• Tips paid by credit card must be remitted to the employee no later than the next regularly scheduled payday.

The laws in place for tipped employees are complex and some employers honestly misinterpret them. Unfortunately, a large percentage of hospitality employers willfully ignore these rules in order to misappropriate tip funds and enhance their own profits by:

• Not distributing tips in a timely manner
• Demanding a portion of employee tips
• Improperly taking tip credits
• Misclassifying tipped and non-tipped employees

Employees are often not aware that they are being denied a significant portion of their compensation. Even those who suspect mishandling of their tips may be afraid to take action for fear of losing their jobs (illegal retaliation) or because the infraction seems too small. Fortunately, our knowledgeable New York employment law attorneys can review your situation as follows:

• Determine if bringing a claim is in your interest
• Advise you of what action you can take
• Hold your current or former employer financially accountable to you should you choose

Through years of success, our attorneys have become known as zealous advocates not to be taken lightly by restaurateurs and the attorneys who defend them. This reputation bolsters our effectiveness in all manner of employment law cases arising in the hospitality industry, including the on-the-job discrimination and harassment that is frighteningly commonplace.

Hospitality workers work hard and are entitled to every cent they earn, whether through tips or regular wages. Our team of NYC wage and hour attorneys at the law firm of Joseph & Kirschenbaum LLP has the legal knowledge, litigation experience and reputation to hold current or even former employers accountable for violations that deprive their workers of hard-earned income. Call our office today at 212-688-5640 or contact us online to schedule a free intake consultation with one of our attorneys. Se habla espanol.