Restaurant Wage Claims
Waiters and waitresses are entitled to overtime pay and may only receive a lower, tip-credited wage, under very limited circumstances
Restaurants are fast-paced, stressful environments. Working in the restaurant industry can be fast-paced and demanding, but it's important to remember that as an employee, you have certain rights that are protected by law.
In New York, where the restaurant scene is vibrant and diverse, it's crucial to be aware of the tipping rules and wage regulations to ensure you receive fair compensation for your hard work. If you believe your rights are being violated, seeking legal help from an employment attorney can be the first step towards obtaining justice and reclaiming your rightful wages.
Employees involved in food service often receive tips that bring their wages above the minimum wage.
The current minimum wage is $15.00 per hour in downstate New York. Wait staff may receive a lower "tip credited" minimum wage of $10.00 per hour IF:
- The employee receives a written Notice about the tip credit;
- Earned tips make up the difference between the tip credit minimum wage and the actual minimum wage for all hours worked in a week; and
- The tip pool, or tip share, is limited to employees involved in actual food service to the customers. So, food runners, bartenders, busboys, and hostesses may be tipped out from the tip pool. But kitchen employees, owners, and managers cannot share the tips;
- No deductions are made from the minimum wage for uniforms, identification badges, customers who don't pay their bill, breakages, or any other prohibited reason;
- The employee's sidework is less than 2 hours or 20% of the total time worked.
Side Work in the New York Restaurant Industry:
Understanding the Implications for Minimum Wages
Working in the restaurant industry often involves more than just serving tables or taking orders. Many employees are also required to perform side work, such as setting up tables, preparing ingredients, cleaning, and other tasks necessary for the smooth operation of the establishment.
However, when side work extends beyond two hours, it can have significant implications for minimum wages in the New York restaurant industry.
Side Work and the Two-Hour Rule
Under New York labor laws, there is a specific provision known as the "two-hour rule" that applies to employees engaged in side work. According to this rule, when an employee spends more than two hours performing side work that does not directly generate tips, that employee must be paid the full minimum wage ($15 per hour in Downstate New York) for that time, rather than the tip-credited minimum wage ($10 per hour in Downstate New York), regardless of whether the employee receives tips.
The two-hour rule is intended to ensure that employees are adequately compensated for all the work they perform, regardless of whether it directly contributes to tip income. It recognizes that side work is an essential part of the restaurant industry and should be fairly compensated if it exceeds a certain threshold.
Examples of Side Work
- Side work can encompass a wide range of tasks and responsibilities. Some common examples of side work in the New York restaurant industry include:
- Setting up and breaking down tables: Arranging table settings, ensuring proper utensils and condiments are available, and cleaning tables after customers leave.
- Prepping ingredients: Cutting vegetables, preparing sauces, and other food preparation tasks required before service begins.
- Cleaning and organizing: Sweeping and mopping floors, wiping down surfaces, and keeping the establishment clean and presentable.
- Stocking supplies: Replenishing napkins, straws, cups, and other necessary items throughout the shift.
- Rolling silverware: Preparing rolled silverware for use by customers, a common task in many restaurants.
- These tasks are essential for the smooth functioning of the restaurant and contribute to providing a positive dining experience for customers.
Minimum Wage Implications
When an employee engages in more than two hours of side work that does not directly generate tips, that employee must be paid the full minimum wage ($15 per hour) for that time. It is important to note that this requirement applies regardless of whether the employee's overall compensation, including tips, exceeds the minimum wage.
An employer’s failure to comply with this rule, or a proper tip credit notice, can result in an award of backpay at the minimum wage for all hours worked, plus liquidated damages, and counsel fees. If the employer fails to provide a tip credit notice, or violates the tip pool arrangement, or assigns too much sidework, employees may be entitled to recover the difference between the tip credited minimum wage and the actual minimum wage for all hours worked, the return of the money that was unlawfully tipped out, double damages, and counsel fees.
And the statute of limitations for these claims is up to six years under New York State Law.
Raymond Nardo, Esq has represented hundreds of restaurant employees who have recovered back wages and monetary awards from their employers.