Restaurant Workers & Tipped Employees
Rights of Restaurant Employees
Tipped Employees
Restaurants often pay their employees at what is commonly referred to as a “tipped rate.” The law permits the employer to take a credit toward the minimum wage rate for employees who receive tips as part of their wages. For example, the current minimum wage for food service workers is $16.00 per hour. The employer is permitted to pay a tipped employee a cash wage of at least $10.65, so long as the employee receives at least $5.35 per hour in tips. The employer must also comply with all applicable regulations, including the requirement to provide notice to the tipped employee of the tip credit at the time of hiring.
Under New York law, there are specific rules governing tipped employees:
- If the employee’s tips, combined with the employer’s direct wages per hour, do not equal the minimum hourly wage, the employer must make up the difference between the tip credit rate and the full minimum wage rate.
- The employee must also be provided with notice that the employer intends to take a tip credit toward the minimum wage. If the employer fails to provide an employee with notice of the tip credit, the employee may be entitled to monetary compensation.
- The employer must give each employee prior to hire written notice of the employee’s regular hourly pay rate, overtime hourly pay rate, the amount of tip credit, if any, to be taken from the basic minimum hourly rate, and the regular payday. The notice must state that extra pay is required if tips are insufficient to bring the employee up to the basic minimum hourly rate. The written notice must be provided in the employee’s primary language.
- If the employee is required to perform non-tipped work for two or more hours, or more than 20 percent of his or her shift, whichever is less, the employee must be paid the full minimum wage rate with no tip credit for that shift.
We offer a free initial consultation to any employee with a potential employment law dispute. To schedule an appointment, contact our offices online or call us at (231) 257-5588. We can also set up consultations by teleconference.
Overtime Pay for Tipped Employees
Employers are required to pay tipped employees premium overtime pay when they work more than 40 hours in a workweek. Sometimes, employers fail to pay tipped employees at the correct overtime rate. Employers are required to pay tipped employees overtime at the rate of one and-one-half the minimum wage rate, less the applicable tip credit. Employers sometimes get this wrong and pay tipped employees overtime at one and one-half times the tipped rate, rather than the minimum wage rate.
Call-In Pay
If an employee reports for duty at the request of the employer, the employee must be paid “call in pay” whether or not assigned to actual work.
Cooks and Kitchen Workers
New York law mandates certain accommodations for cooks and kitchen workers:
- An employer must pay cooks and kitchen workers the full minimum wage rate for each hour worked, without taking a tip credit.
- An employer must pay cooks and kitchen workers overtime at the rate of one and one-half times the employee’s regular rate of pay for all hours worked after 40 hours in a workweek.
- Some employers pay cooks and kitchen workers a fixed daily or weekly salary, regardless of the actual number of hours the employee works in a given workweek. If the employee is paid a daily or weekly salary, they must also be paid overtime for the hours worked after 40 hours per week.
New York City Fast Food Workers
There are also specific statutory requirements for fast food workers in New York City:
- Employer must give fast food workers regular schedules that stay the same week-to-week
- Fast food workers must be provided with work schedules 14 days in advanceof the start of the schedule
- Employers must pay fast food workers premiums for schedule changes
- Fast food workers must be given an opportunity to say no to extra work
- Current fast food workers must be given the opportunity to work more regular hours before the employer hires new additional employees
- Employers cannot fire a fast food worker without just/good cause
- Employers must reinstate laid-off fast food workers by seniority when hours become available
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We can help you protect your rights as a tipped employee
Take steps to get full and fair compensation as a restaurant worker. Contact our offices online or call us at (631) 257-5588 to schedule a free initial consultation. We are also available for teleconferences using Zoom and Microsoft Teams.
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490 Wheeler Rd, Ste 277
Hauppauge, NY 11788
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New York, NY 10007
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