Minimum Wage and Overtime Laws for Servers and Tipped Employees

New York Tip Credit Attorney – Recover Your Tips, Minimum Wages and Overtime

Minimum Wage and Overtime Laws for Servers and Tipped EmployeesIf you work as a waiter, server, bartender or barback and receive tips, special wage rules apply to you. The minimum wage and overtime laws also cover the tips you receive as well as the minimum wage and overtime your employer pays you. These laws are among the most technical in the employment field. And they are also the most frequently violated and ignored. The result is that restaurant workers, in both casual and fine dining establishments, as well as other tipped employees, are frequently underpaid. If you think this is happening to you, contact Braverman Law. We are experienced in getting tipped employees the full pay to which which they’re entitled.

What are the general rules for tips?

A tip is the sole property of the employee. Under New York law, an employer cannot keep any part of the tips received by the employees. In other words, the restaurant cannot keep part of a server’s tips. Tip sharing or “pooling” is permitted, but only among employees who regularly and customarily receive tips, such as a waitresses, waiters, servers, bartenders, bellhops, bussers and counter staff (if they serve customers).

Can my boss require a tip credit?

Employers may pay the employee a reduced hourly rate by taking advantage of a “tip credit” which allows them to credit a portion of the employee’s tips against the minimum wage. The tip credit varies by job type. Effective December 31, 2015, the tip credit in New York for food service workers is $1.50 per hour, meaning that the employee can receive a reduced minimum wage of $7.50 per hour (rather than normal $9.00 per hour). However, these special rules apply only if the business owner observes certain strict regulations. If the owner ignores these laws, you may be entitled to your full minimum wage and overtime.

At Braverman Law, we have seen several schemes commonly used by restaurants and other businesses in New York to underpay their tipped employees.

Can my boss require me to do non-tipped work?

If you are being paid at the sub-minimum wage rate for tipped employees, it is illegal for your employer to make you perform substantial amounts of non-tipped work. Generally, tipped employees who spend more than 20% of their time doing non-tip-producing work must be paid the full minimum wage for the time spent performing the non-tipped work.

In fact, if a tipped employee performs non-tipped work for 2 hours or more, or for more than 20% of his or her shift, whichever is less, the full employer must pay the employee the full (non-tipped) minimum wage for all hours worked that day.

If you are paid the sub-minimum wage, but are performing non-tipped work, call Braverman Law at 212- 206-8166 or contact us online today to schedule an appointment. Our law firm will help you get paid all the back pay you are owed.

Can my boss require me to share tips if they are claiming a tip credit?

An employer loses their right to the tip credit where they require tipped employees to share tips with employees who do not provide direct customer service or managers. In other words, if you are required to share your tips with non-tipped personnel, including managers, shift supervisors, and back-of-the- house workers, you are probably owed the full minimum wage for all hours worked. In addition, New York law flat out prohibits an employer or member of management from retaining any tips intended for an employee, regardless of whether the employer wishes to take advantage of the tip credit.

If you believe your employer has been wrongly sharing in your tips, call Braverman Law at 212-206-8166 or contact us online today to schedule an appointment to discuss your legal options.

What are the rules for an employer who takes the tip credit?

Businesses in New York may not take a tip credit unless they notify employees first in accordance with strict guidelines.

Under federal law, an employer must provide the following information to an employee before taking advantage of the tip credit:

  • (i) The amount of cash wage (sub-minimum wage) that the employer is paying a tipped employee.
  • (ii) The additional amount claimed by the employer as a tip credit.
  • (iii) That the tip credit claimed by the employer cannot exceed the amount of tips actually received by the tipped employee;
  • (iv) That all tips received by the tipped employees are to be retained by the employees except for a valid tip pooling arrangements limited to employees who customarily and regularly receive tips

Under New York law, employers must provide to employees, prior to the start of employment, a notice that specifies the employee’s regular hourly pay rate, overtime pay rate, any allowances the employer intends to claim (i.e., the amount of any tip credit), and regular payday. This notice must be provided to employees in English, and their primary language if their primary language is not English. New York tip credit rules also impose a recordkeeping burden by requiring that an employer preserve for at least six years weekly payroll records that show the tip credits, if any, claimed as part of the minimum wage.

Can I get minimum wage even if I got tips?

What happens if your employer has not complied with these notice and record keeping requirements? You may be entitled to your full minimum wage (and not the lower, tipped minimum wage), even if you received tips during the course of your employment.

If you believe that there is a problem with your tips or pay, call Braverman Law at 212-206-8166 or contact us online today to schedule an appointment to discuss your situation. Se habla español