Wage Violations in the Restaurant Industry
The New York restaurant industry employs many workers. Unfortunately, too many restaurants force their employees to work long hours, encourage them to skip their meal and rest breaks, and commit wage violations related to tip pooling and tip credits. Most restaurant employees do not have the luxury of quitting in spite of deeply unfair working conditions. At Phillips & Associates, our wage violations attorneys have assisted many employees throughout New York City in taking legal action against employers that have violated their rights.Wage Violations in the Restaurant Industry
Many restaurant workers depend on tips as part of their wages. Both federal law and state law mandate that tips belong to the employee, not the restaurant. However, New York employers may take a tip credit towards the minimum wage obligations. This means that in many cases, a portion of tips is counted as if the restaurant, rather than customers, paid them to the employee. Also, employees may be asked to pay their tips into a "tip pool" so that the tips are distributed among the other employees who have interacted with customers.
There are a number of rules related to tip credits and tip pools, and a restaurant's failure to follow these rules may be a wage violation and the source of litigation. Tip pooling is only for employees who earn some of their wages by interacting with customers. People who have substantial authority or control over subordinates (as opposed to having limited supervision duties) are not allowed to participate in the tip pool. Similarly, people who do not provide any personal service to patrons cannot participate in the pool.
The New York minimum wage until the end of 2015 is $8.75, and from December 31, 2015 onward it is $9. An employer can take a tip credit from that minimum wage, but if an employee spends at least two hours or more than 20% of his or her shift doing work that is not tipped, an employer cannot claim a tip credit for that day. For example, if you are a server for five out of eight hours of the day, and for three hours you deal with inventory, the employer cannot take a tip credit for your tips made during the five hours spent earning tips.
Spread of hours is the length between the start and end of a worker's shift. It includes any off-duty time for lunch or a rest break. For example, your shift might be eight hours, but the spread might be 3:00 p.m. to 1:00 a.m. If the spread is greater than 10 hours, an employee is supposed to receive an additional hour of pay. This pay is not included for the purposes of calculating overtime. The restaurant cannot offset this rate with a minimum wage tip credit.Assert Your Wage and Hour Rights by Enlisting a New York City Attorney
Employees of restaurants must be paid according to the law, but unfortunately restaurant owners too often commit wage violations. If you and your coworkers suspect you are not getting the full amount you are owed at a New York City restaurant, you should consult a lawyer who is knowledgeable in overtime and minimum wage claims. Call Phillips & Associates at (212) 248-7431 or contact us through our online form to set up a free consultation. We serve individuals across the five boroughs of Manhattan, Queens, the Bronx, Brooklyn, and Staten Island, as well as in Westchester County and Long Island.
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