Wage Violations at Restaurants

New York City is full of restaurants. Old ones close, and new ones open because everyone likes to eat out or get take out. But if you work in a restaurant, from Brooklyn to the Bronx, you may likely find that you are not being paid properly. In New York City, employer abuses are pervasive in this industry.

Restaurant managers that steal tips. Although the restaurant can have a tip pool among workers who actually serve customers, such as those who wait on tables and bus tables, the managers are not allowed to dip into the pool themselves. Nor can the restaurant spread the tip pool to kitchen workers – they cannot take from the wait staff pocket to pay the back of the shop workers.

Restaurants that don’t pay the minimum wage. You must be paid the minimum wage, which is set by the New York State Department of Labor and increases at regular intervals. Restaurants can pay less than applicable minimum wage if they take a “tip credit.”  But the restaurant can’t reduce your wage through the “tip credit” if you spend more than 2 hours doing non-tipped work, or if your tips are too low, or if they do not inform you in writing that they will be taking a tip credit and actually keep records of the tips you receive. A lot of restaurants don’t comply with these requirements, and so must pay the full minimum wage.

Fast Food Workers. You generally don’t get tips. So effective December 31, 2015, you should be getting $10.50 per hour in New York City (and you will see an increase to $15.00 per hour by July, 2021). What is a fast food establishment? Places like a Starbucks or McDonald’s, where you pay before drinking or eating. There is a limitation, though. The establishment must be part of a chain, or brand, with 30 or more locations nationally.

Restaurants that don’t pay overtime. If you are working more than 40 hours per week, you should be getting time and half payments for any hours over 40. The restaurant cannot keep changing the day that the week starts to deny you overtime. The workweek has to begin and end on the same day each week, and then you count up the hours to determine if you are entitled to overtime. If the restaurant pays you in a lump sum, without giving you a weekly written breakdown of your hourly pay and your hours, then the lump sum received must be divided by 40 (this would be your “regular rate”) and your overtime pay would be 1.5 times the “regular rate.” This usually results in an overtime wage calculation that is favorable to you.

Restaurants that don’t pay “spread- of-hours.”  If you work more than 10 hours per shift, then you are entitled to get an additional hour payment at minimum wage rates, over and above the actual hours that you worked.

Restaurants that charge you when a customer walks out without paying. The restaurant is the business, not you, and the restaurant has to take responsibility for walk outs. They can’t deduct walkouts from your paycheck.

Restaurants that charge you for breakage. Plates can break when you are carrying them all day, and sometimes that happens on your watch. The restaurant cannot deduct the costs of the breakage from your wages.

Restaurants that don’t pay for uniforms. If the restaurant requires you to wear a uniform, then the restaurant has to pay for uniforms and their upkeep, except if the required clothing can also be used in your personal life. For example, if the uniform is white shirt and black pants, without any logo, then you would have to pay.

Restaurants that don’t pay “call-in” pay.  If the restaurant calls you to work, and then sends you home before 3 hours, they have to pay you for the full 3 hours.

Restaurants that don’t take lawful meal credits. If you eat a meal at the restaurant, they can deduct a statutory amount from your wages. They can’t deduct at some other level, say half price. And you must have at least a half hour break for the meal. If you are eating and running to tables, then the restaurant has to pay you your regular wages when you have to eat on the run.

Restaurants that don’t give proper notice of your pay. When you are hired, the restaurant has to give you written notice of your pay rate, overtime rate, amount of tip credit and regular payday. The restaurant also has to give you a weekly pay stub showing your hours worked, rates paid, gross wages, tip credits, and lawful deductions. The restaurant also has to put up a Department of Labor poster for restaurant workers. If the restaurant fails to keep records required by law, they will have difficulty showing that you they paid you properly.

Contact us online or call us at (212) 949-1001 so that we can review if your New York City restaurant employer is not paying you properly, or has acted illegally in other ways in violation of the Fair Labor Standards Act (FLSA) or New York State Labor Law.

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