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 City for restaurant food service workers is $15 per hour if the restaurant is large, i.e., it has 11 or more employees. But the employer need only pay you $10 per hour if tips make up for the difference. Such workers must be primarily engaged in serving food and beverages. Wait staff, bartenders, captains and bus boys are food service workers. The tips must bring the employees up to at least $15 an hour for straight time work working up to 40 hours in a week.

The minimum wage for restaurant food service workers where there are 10 or less employees is $13.50 per hour, but the employer need only pay $9 per hour provide the tips are at least $4.50 an hour.

Restaurant Workers and Overtime

If a food service worker works more than 40 hours in a week, overtime wages at time and a half must be paid for all hours worked above 40 during that week. The overtime rate for large restaurants is $22.50 per hour and for small restaurants $20.25 an hour.
If you are a food service worker getting less than what the law requires you should call Cary Kane at (212) 868-6300 to speak to a lawyer about your 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 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 during the day, even though you worked only 9 hours, you are stilled owed spread of hours pay. Spread of hours pay is equal to one hour at the minimum wage, i.e., $15 for a large restaurant and $13.50 for a small one.

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, plus tips. That can add up to a very large recovery.

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 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 loses the tip credit in this example, if a large restaurant you must receive a minimum of $15 per hour times 10 hours worked, i.e., $150 in base wages plus your earned tips that day. The restaurant may be also required to pay you $15 for two hours of overtime, if you worked more than 40 hours in total for that week.

If this happened every day, five days a week, for a year, you would be owed $16,900 in additional wages under the law.

Speak to a Restaurant Tip Credit and Overtime Attorney

If you are a waiter, waitress, bus 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.