Can Restaurants Make Servers or Delivery Personnel Perform Non-Tipped Work?

Wage and Hour Employment Lawyer New YorkServers and delivery people for restaurants in New York City rely on tips for the majority of their incomes. They often base their idea of a successful shift not on the number of hours they worked but on the amount of tips they earned. Because tips are such a large part of a server or delivery person’s earnings, standard minimum wage requirements under New York wage laws do not apply to such employees.

Specifically, employers can apply a tip credit to hourly wages of tipped employees, which reduces the required hourly minimum wage they must pay. For example, in 2018 in New York City:

  • Companies with 10 or fewer employees can apply a $2.00 tip credit for tipped food service employees, requiring an hourly wage of only $10.00
  • Companies with 11 or more employees can apply a $2.15 tip credit for tipped food service employees, requiring an hourly wage of only $10.85 (instead of $13.00 per hour)

This is in contrast to the minimum wage of $12.00 per hour and $13 per hour for other small and large New York City employers, respectively. Note, however, that if employees do not earn a minimum amount in tips, employers must supplement hourly wages to ensure they receive the required New York City minimum wage.

Payment for Non-Tipped Work

Often an employer may request that a tipped employee engages in non-tipped work for a portion of the day. However, this hurts the income of tipped employees, as they will lose the opportunity to make important tips during this time. Many tipped employees may wonder if their employers are allowed to make such requests.

Under labor laws, employers are, in fact, allowed to request that tipped employees engage in non-tipped work. However, if a tipped employee engages in non-tipped work for two hours more in one day, or 20% of his shift, whichever is less, the employer cannot apply the tip credit to this employee and must instead pay the regular minimum hourly wage for all the hours worked that day.

Knowing your rights as a tipped employee in New York can require navigating a complex series of laws, and many employers try to take advantage of this situation and deny tipped employees their rightful wages for completing non-tipped work.

Discuss Your Rights With a New York City Wage Attorney Today

If you are a tipped employee who sometimes performs non-tipped work, keep a careful watch on your wages to ensure your employer does not deny you payment that you deserve. If you have concerns about and wage or hour matters, please do not hesitate to contact a New York City wage lawyer at Braverman Law PC at (212) 206-8166, or contact us online today.

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