New York City Restaurant Tip Credit and Overtime Lawyer

Tipping of employees is allowed in New York State and the law requires that any tip left for an employee must be paid to the employee.  Certain employers are permitted to pay a sub-minimum wage because tipping the employees is customary.   The rules regarding tips and the tip credit are complicated.

Restaurant Workers and the Tip Credit

The minimum wage in New York is currently $8 per hour.  If you work for a restaurant, it is legal for the employer to pay certain employees less than $8 per hour provided that the tips they receive bring the hourly wage to at least the minimum wage.  A food service worker must receive at at least $5 per hour in base wage from the employer.  And they must receive at least $3 per hour in tips, or the base wage must be raised.  Such workers must be primarily engaged in serving food and beverages.  Wait staff, bartenders, captains and buss boys are food service workers.  The tips must bring the employees up to at least $8 an hour for straight time work, that is working 40 hours a week or less.

Restaurant Workers and Overtime

If a food service worker works more than 40 hours in a week, overtime wages must be paid for all hours in excess of 40 worked during a week.  The minimum overtime wage rate for food service workers is $9 per hour provided the tips also come to an additional $3 per hour, for a total of $12 per hour in earnings.

If you are a food service worker getting less than $5 per hour in base wage or less than $9 per hour for overtime or less than  $3 per hour in tips, the law is being violated and you should call Cary Kane at (212) 868-6300 to speak to a lawyer about a case.

Restaurant Workers and Spread of Hours Pay

The law also requires that food service workers receive what is called “spread of hours” pay whenever their the starting time and finishing time for work in any day is more than 10 hours.  You do not have to work more than ten hours to get spread of hours pay.  For example, if you started work at 11 a.m. and finished work at 11 p.m., and had an unpaid break of 3 hours, let us say from 2 p.m. to 5 p.m., even though you worked only  9 hours, you are stilled owed spread of hours pay because your start time was more than 10 hours before your finish time.  Spread of hours pay is equal to one hour at the minimum wage, i.e., $8.

Restaurant Workers and Tip Pooling

It is lawful for an employer to require that food service workers pool their tips.  However, it is against the law for the employer to require that the tips be shared with employees who are not food service workers.  So for example, it is unlawful for an employer to require that the tips be shared with a cook,  supervisor, manager, or owner.

If an employer is forcing food service workers to share their tips with non-food service employees, the employer not only owes the share of tips going to the non-food service employee, but also cannot take the tip credit.  This means that the food service workers in the restaurant must be paid the full minimum wage, $8 per hour for straight time and $12 per hour for overtime, plus tips.  For every hour that the employer paid the tip credit wage of $5 per hour, the employer now owes an additional $3 per hour in wages to all the affected food service employees.

Restaurant Workers and Hours of Work

You are supposed to be paid for all hours you work, not just the hours you work serving food and beverages.  If the employer expects you to arrive an hour before the restaurant opens to help set up that is an hour of work you are supposed to be paid for.  Similarly, if you are required to stay for an hour after the restaurant closes to help clean up, that is another hour of work that the restaurant is supposed to pay you for.

In any day when you perform work where you do not get tips for 2 hours or for more than 20% of a shift, if that is less than 2 hours, the employer loses the tip credit and is required to pay you the full minimum wage of $8 per hour for all hours worked in the day, plus tips.

Assume that you worked 10 hours in a day, during which you spent 8 hours serving food and drinks to customers and 2 hours helping to set up and clean up when the restaurant was closed.  Because the employer looses the tip credit in this example, you must receive a minimum of $8 per hour times 10 hours worked, that is to say, $80 in base wages plus your earned tips that day.  The restaurant may be also required to pay you $12 for  two hours of overtime, if you worked more than 40 hours in total for that week. If the restaurant only paid you for 8 hours at $5 per hour you are owed at least $40 more for the day than what you were paid.

If this happened every day, five days a week, for a year, you would be owed over $10,000 in additional wages under the law.

Speak to a Restaurant Tip Credit and Overtime Attorney

If you are a waiter, waitress, buss boy, captain, or bartender and work in a restaurant in the New York City area and question whether you are being properly paid, you should call Cary Kane LLP at (212) 868-6300 today and speak with an attorney to schedule a free consultation.  If you have a case, the law allows you to collect double what you are owed and the restaurant pays for your attorneys’ fees.

The deadline for filing a lawsuit is two years in federal court and six years in state court.  Don’t hesitate and let your damages slip away.  Call today.


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