Does Side Work for Restaurant Workers Violate the NYC Labor Law?

Side Work for Restaurant Workers That Doesn’t Earn Tips May Be Losing Out of Wages: New York City Wage and Hour Attorney Explains

Restaurant workers who are paid tips like servers and bussers rely on tips to increase their income.  This is important because New York Labor Law allows restaurant employers to pay food service employees less of an hourly wage because tips will—or should—fill the gap.  In fact, good servers can even earn a lot more money than minimum wage—particularly in New York City.

But sometimes restaurant employers will use servers or bussers to do work that is not tip generating.  This is known as “side work” in the industry.  If an employer is having a server do more side work than food service, thus doing more non-tip earning work than actual tip earning work, there could be a New York wage and hour violation.

Minimum Wage in New York City for All Employees and Food Service Employees Working for Tips

Under both federal and state law, a worker must be paid at a rate no lower than minimum wage.  There are different pay scales per region and whether the employee is earning tips.  In New York City for non-tip work, the minimum wage for large employers (11 or more employees) is $11.00 an hour, and for small employers (10 or less) minimum wage is $10.50 an hour.  This is the amount that the employer must pay the employee directly an hour when the employee is not working for tips.

However, that number is much different for employees earning tips.  For food service workers in New York City that minimum wage is is now $7.50 an hour as long as the hourly tips are at least $3.50 an hour for large employers and $3.00 an hour for small employers.

This means that employers only need to pay $7.50 an hour, as opposed to $11.00 or $10.50.  This may seem like a small difference, but an employer can save a lot of money by having more food service employees working for tips rather than straight pay because it is less money out of the employer’s pocket.

For example, in a regular 8 hour shift for a small business of 10 employees, paying all the tip-earning rate will save an employer $240 a night or $1,680 in a week.  This equates to $87,360 a year saved, which is a full salary that is about seven times more than the poverty level line.  This is a large figure and that is only for small businesses working 8 hours a day, which most restaurants work more.

Why “Side Work” Can Violate the New York Labor Law

Side work may violate the labor law if it is done at an excessive rate.  This is because side work by a tip-earning employee simply prevents an employee from earning tips.  The side work does not generate tips but helps an employer directly.

This is a common way that many employers hire servers to do this side work to save money at the hourly rate.  Employees who are being paid tips but going “special assignments” or side work that is not related to earning tips may not being paid the proper amount of wages their are entitled to.

Restaurant Workers Who Have to do “Side Work” Should Call Our New York City Wage and Hour Lawyer

The experienced New York City wage and hour attorneys at SAMUEL & STEIN are dedicated to asserting and defending the rights of employers and working people throughout New York and New Jersey.  We have the resources, experience, and knowledge necessary to ensure your legal rights are protected and you are not taken advantage of.  Call us today by dialing (646) 480-2149 or use the convenient “Evaluate Now” box on our webpage.  Together we can help answer your questions and protect your rights.

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