This holds true unless the employer can demonstrate that the customer was made aware that the charge was not intended to be 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. Non-service staff must earn at least $8.00 per hour.Įmployers may not keep for themselves any portion of a payment that legally constitutes a tip. Service staff in New York must receive a minimum hourly pay of $5.65. The venue must reimburse service staff any monies wrongfully tipped out during the last six years and pay substantial penalties.Įmployers must promptly distribute gratuities that are automatically added to the bill.Įmployers cannot pay staff on salary or by the day or shift in order to avoid paying for overtime. Likewise, kitchen staff, dishwashers and other back-of-the-house support workers who do not interact with customers cannot be included. Managers and supervisors who do not actually serve food or drinks cannot participate. However, the law strictly limits participation in tip pools to service staff. In New York, the Hospitality Wage Order defines many of the rights service employees have concerning tips:Įmployers may require tip sharing and may set the rules by which pooled tips are allocated. 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. How wage and hour laws apply to restaurant workersīecause 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. 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. 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. 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. Stealing from service staff typically benefits the owner, not the non-service staff. Unfortunately, tip pools are very often manipulated by inserting ineligible non-service staff. 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. Working as a waiter in a busy restaurant can be a difficult, but rewarding, job. NYC Attorneys Fighting for Service Staff and Restaurant Workers
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