At Fitapelli & Schaffer, LLP, we are dedicated to protecting the rights of restaurant workers in NY. Due to the nature of their work restaurant workers are often taken advantage of by their employers. Fitapelli & Schaffer, LLP has represented thousands of restaurant employees nationwide and have protected their rights to the appropriate minimum wage pay, overtime pay, tips and many other claims specific to restaurant workers. We have filed numerous suits for restaurant employees whose rights have been violated, and we are committed to continuing to protect these workers’ rights. It is important to understand all of the laws and statutes governing restaurant worker rights, as they are more complex and extensive than many other industries wage laws.
The New York Labor Law (NYLL) and many other states’ labor laws, protect both tipped and non-tipped restaurant workers’ rights. Every individual state’s laws contain strict guidelines and requirements when it comes to restaurant workers’ rights. Despite these strict guidelines, employers continue to violate restaurant workers’ rights which results in employees being denied their lawfully earned wages. Because of the unique nature of the hospitality industry, the compensation given to restaurant workers is more complex as many employees receive tips in addition to the wages paid by their employer. It is important for all restaurant workers to remember that they are still entitled to be paid wages by their employer, regardless of the amount of tips they may be receiving. Fitapelli & Schaffer, LLP encourages all restaurant workers to become familiar with their rights, whether you are a tipped or non-tipped food service workers.
In order for you to protect your rights, it is a good idea to become familiar with some of the most common violations. There are countless violations of restaurant workers’ rights, and, in New York specifically, restaurant workers’ rights are even more comprehensive, as employees are covered by numerous New York state specific laws. Some New York specific violations of restaurant workers’ rights include: (1) failure to pay an extra hour of pay at the full minimum wage rate for each day that the employee works over 10 hours (*this includes break times); (2) failure to provide a sufficient number of uniforms for employees in addition to paying for employees’ uniform maintenance (where washing, ironing, dry cleaning, or other maintenance is required); (3) deducting pay for inadequate meals provided to employees; and (4) deducting pay from employees for customer walkouts or breakages.
In the State of New York, the minimum wage is currently set between $10.40 and $13.50 per hour. Thus, employees must be paid at least $10.40 per hour for all hours worked up to 40 per workweek, and $15.60 per hour for all hours worked in excess of 40 per workweek. Moreover, in New York, employees must be paid at least between $12.00 and $13.50, depending on their employer and location, per hour for all hours worked up to 40 per workweek, and between $18.00 and $20.25 per hour for all hours worked in excess of 40 per workweek. However, it is important to note that not only are these amounts are subject to change, but there are also certain exemptions that apply.
Most notably for restaurant workers, under the NYLL, employers are permitted to pay a reduced minimum wage rate of $7.50–$8.65 per hour to all tipped employees (such as: servers, bartenders, bussers, runners, and barbacks), as long as certain requirements are met. The maximum tip credit employers may take varies by location: between $4.00 and $4.35 in New York City, $3.50 in Westchester and Long Island, and $2.90 in the remainder of New York State.
In addition to the FLSA tip credit notice requirements, New York State law requires that information be in writing (verbally is not enough), and that employers inform their tipped employees that extra pay is required if the tips earned by the employee are insufficient to bring them up to the basic minimum wage rate. In other words, if a tipped employee in New York who is paid $7.50 doesn’t earn at least between $2.90 and $4.35 in tips, varying by location and type of employer, for every hour in which they work, the employer will pay the difference, ensuring that the employee always earns at least $10.40 per hour, between their regular pay rate and the tips they earn. This is important to understand because if an employer does not fully satisfy each and every requirement (under both federal and state law), the employer is not eligible to pay tipped employees at the reduced tipped minimum wage. In our extensive experience with wage and hour cases where tip credit is an issue, many employers neglect to properly notify their eligible employees of the Tip Credit Provision, which would entitle them to the full minimum wage hourly rate, and can result in additional claims for the employee. Thus, if you feel that you were not given adequate tip credit notice and you are paid at the reduced tipped minimum wage rate of $7.50 (or less in other states), you may be entitled to unpaid wages, so please call the employment lawyers at Fitapelli & Schaffer, LLP for a free consultation at (212) 300-0375.
Due to the allowances allotted to employers by the NYLL (paying reduced rates to tipped employees) under no circumstance is an employer allowed to withhold any hourly rate from a restaurant worker, or tipped employee, and allow the employee to only receive tips as payment. The law prohibits employers to neglect to pay any tipped worker at least the reduced tipped minimum wage for all hours worked ($7.50 per hour in New York. Thus, restaurant workers cannot be compensated solely by tips as payment for their work. If you or anyone you know are being paid solely by tips without receiving any hourly compensation, you may have a claim for unpaid wages, so please call the employment lawyers at Fitapelli & Schaffer, LLP for a free consultation at (212) 300-0375.
It is also important to understand restaurant workers’ rights in regards to the tips they earn. Simply put, tips earned by a restaurant employee never belong to the employer, and can only be shared with other tip-eligible employees. In that regard, a restaurant can allow their restaurant workers to “tip-out” other tip-eligible employees, or partake in what is commonly referred to as a “Tip Pool.” For example, a server can tip-out another tip-eligible employee (such as a bartender, busser, runner, barback, etc.), but under no circumstances can a server tip-out a non-tip-eligible employee (such as a dishwasher, cook, supervisor, manager, etc.). Many times, it is unclear to the restaurant worker exactly who they should or should not be sharing their hard-earned tips with. In general, someone who is “tip-eligible” is someone who customarily and regularly receives tips, having customer interaction. Because these concepts are not so clear cut, it is imperative for restaurant workers to become familiar with their rights. If you or anyone you know thinks that you are being taken advantage of, or may be sharing tips with an employee who you think is not eligible to receive tips, you may have a claim for unpaid wages, so please call the employment lawyers at Fitapelli & Schaffer, LLP for a free consultation at (212) 300-0375.
Another common violation of restaurant worker rights is failure to pay the correct overtime wages. Fitapelli & Schaffer, LLP has represented a multitude of restaurant workers who were not paid overtime pay for all hours worked in excess of 40 per workweek. In general, hourly workers are entitled to overtime pay at time and one-half their regular hourly pay rate (which may be the minimum wage rate or the reduced tipped minimum wage rate) for every hour worked in excess of 40 per workweek. Often times, employers pay hourly employees their regular hourly pay rate for all overtime hours worked (those beyond 40 per workweek), which is known as paying “straight-time.” Other employers will fail to pay any compensation for overtime hours worked. In either circumstance, the employer may be liable to pay time and one-half the employee’s hourly rate for all overtime hours worked. If you or anyone you know does not receive overtime pay at time and one-half their regular hourly rate for all hours worked beyond 40 per workweek, you may have a claim for unpaid overtime pay, so please call the employment lawyers at Fitapelli & Schaffer, LLP for a free consultation at (212) 300-0375.
Restaurant workers are entitled to be compensated for all hours worked, even for work performed “off-the-clock” (work performed before you clock-in for your shift, or performed after you clock-out for your shift). One of the most common violations of this is when employers require restaurant workers to perform side work duties “off-the-clock.” Side work duties are job responsibilities that a server (or similarly situated tipped employee) is required to perform before, during, and/or after their shift that do not directly relate to earning their tip. A few examples of side work duties include, setting tables up for service, restocking plates, glassware, and other supplies, cleaning and wiping down sections of the restaurant, and prepping food or supplies for service. Under the NYLL, a tipped employee should not spend more than 20% or two hours of their shift, performing side work. Performing any more than the 20% or 2 hours of side work, in any given shift prevents tipped employees from receiving the maximum amount of tips during their shift and violates the NYLL.
At Fitapelli & Schaffer we are committed to defending restaurant workers’ rights. If you, or someone you know, have been the victim of any of the aforementioned unlawful acts, and believe you are not being paid properly, you may have a claim for unpaid wages. For a free consultation, contact our office at (212) 300-0375 or visit our website for more information www.fslawfirm.com. To learn more about restaurant workers’ rights and to obtain information about our previous cases and current cases, please visit our blog here.
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