Restaurant Worker Rights

At Fitapelli & Schaffer, LLP, we are dedicated to protecting the rights of restaurant workers nationwide. 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 Fair Labor Standards Act (FLSA) protects both tipped and non-tipped restaurant workers’ rights. The FLSA, which is a federal statute, contains 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, but some of the most common include: (1) failure to pay the proper minimum wage rate for all hours worked up to 40 per workweek without giving the proper tip credit notification, (2) failure to pay the proper minimum wage rate for all hours worked up to 40 per workweek for time spent performing side work; (3) failure to pay overtime pay at time and one-half the employee’s regular hourly rate (regular hourly rate includes an employee’s normal wages in addition to any commissions, bonuses, party pay, etc. earned in that pay period) for hours worked in excess of 40 per workweek; and (4) failure to pay all rightfully earned tips by distributing portions of the tip pool or tip share to employees who customarily and regularly do not receive tips (including, but not limited to, managers, back-of-the-house employees, dishwashers, silverware rollers, expediters, etc.).

Most notably for restaurant workers, under the FLSA, employers are permitted to pay a reduced minimum wage rate of $2.13 per hour to all tipped employees (such as: servers, bartenders, bussers, runners, and barbacks), as long as certain requirements are met. The FLSA explains that employers may take a “tip credit” from tipped employees’ wages, which is the difference between the full minimum wage rate and the reduced tipped minimum wage rate ($7.25 – 2.13 = $5.12), essentially accounting for the tips that the restaurant worker is going to earn in addition to the employer’s compensation. However, there are very strict notice provisions, or “tip credit notice requirements,” under the FLSA that an employer must follow in order to pay employees the reduced tipped minimum wage.

The FLSA tip credit notice requirements include informing all tipped employees verbally or in writing: (1) of the amount of cash wage they are being paid, (2) of the amount the employer claims as a tip credit, which cannot exceed $5.12 per hour; (3) that the tip credit claimed by the employer cannot exceed the amount of tips the employee actually receives; (4) that all tips must be retained by the employee, unless there is a valid tip pooling arrangement limited to employees who customarily and regularly receive tips; and (5) that the tip credit will not apply unless the employee has been informed of all these provisions. 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 $2.13 (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 FLSA (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 ($2.13 under federal law, but varies among states). 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 FLSA, if a tipped employee is spending more than 20% of their shift performing side work, they are entitled to be paid the full minimum wage (rather than the reduced tipped minimum wage) for all hours worked during that shift. The rationale is that because these restaurant workers rely heavily upon their earned tips, it is important that the amount of time they spend doing side work does not interfere with their ability to earn tips.

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.