Labor Law Complexities: Waitresses In Nyc, Explained

Waitresses in New York City are protected by a multitude of labor laws that govern their employment, including but not limited to wage and hour laws, child labor laws, industry-specific laws, and protections against wage theft. These laws apply to all workers in the city, regardless of immigration status.

In terms of wage and hour laws, the minimum wage in New York City is $15.00 as of 2024, with the federal minimum wage being $7.25. Waitresses are entitled to earn the full minimum wage per hour, and if they receive tips as part of their compensation, their legal rights become more complex. For example, in New York, employers can take a tip credit and count tips towards their minimum wage obligations, but they must inform employees of this in writing.

Additionally, New York labor laws require employers to post provisions of the Minimum Wage Act and provide employees with a multilingual Know Your Rights at Work poster. These laws also mandate that employees receive overtime pay for working more than 40 hours in a week, and they are entitled to an extra hour of pay when the workday spans more than ten hours.

Other important labor laws in New York City include the right to up to 40 or 56 hours of paid safe and sick leave per year, the right to temporary schedule changes for personal events, and the prohibition of discrimination based on protected categories such as conviction history and immigration status.

Minimum wage and tip credits

In New York, the minimum wage for tipped workers depends on their role, location, the restaurant they work in, and the date. For example, the minimum wage for food service workers in New York City is $15.00 per hour. Their employers can combine a cash wage of at least $10.00 with a tip allowance of no more than $5.00 per hour. This is known as a "tip credit".

Under federal law and in most states, employers may pay tipped employees less than the minimum wage, as long as employees earn enough in tips to make up the difference. This is also called a "tip credit". The credit is the amount the employer doesn't have to pay, so the applicable minimum wage less the tip credit is the least the employer can pay tipped employees per hour. If an employee doesn't make enough in tips during a given workweek to earn at least the applicable minimum wage for each hour worked, the employer has to pay the difference.

In New York, employers in the hospitality industry may not take tip credits for:

• Days when tipped workers spend more than two hours, or 20% of their shift, doing non-tipped work
• Weeks when service employees receive tips averaging less per hour than the specified minimum amount for the location and size of the employer

Additionally, no tip credit is available in the building service industry, and as of December 31, 2020, tip allowances are not permitted in miscellaneous industries (all industries except hospitality, farm workers, and building service).

For tipped workers, employers must pay overtime hours worked at time-and-one-half the minimum wage rate, less the applicable tip credit.

In New York, a food service worker is considered tipped if they work in an occupation where they regularly receive tips each workweek and spend less than 20% of their time doing untipped work.

New York law allows employers to require tip pooling or "tipping out". However, employees must be able to keep at least the full minimum wage, and employers may not require employees to contribute more to the tip pool than is reasonable or customary. The employer may not keep any part of the pool or tip-sharing arrangement; it must all be distributed to the employees.

New York law expressly allows employers to deduct the employee's share of the credit card processing fee from the employee's tips.

Overtime pay

Waitresses in New York City are entitled to overtime pay, which is a higher rate of pay for hours worked after 40 hours in a workweek. This means that for any hours worked beyond 40 hours in a week, they must be compensated at a rate of 1.5 times their normal hourly wage. This right to overtime pay cannot be waived, and offering additional shifts at a normal rate of pay is not permitted as an alternative.

In New York, almost all workers are entitled to overtime pay, with a few exceptions. These exceptions include executive employees, administrative employees, and professional employees. These positions are considered "exempt" from the requirement to receive overtime pay under federal law, and New York State follows these exclusions. However, when the minimum wage in New York increases, the minimum salary required for executive and administrative employees also increases proportionally.

It is important to note that the rules for overtime pay may vary depending on the industry and the specific circumstances of employment. For example, farm workers in New York have different overtime rules, with overtime pay kicking in after 60 hours of work per week. Additionally, there may be specific regulations for workers in the fast-food industry or other sectors.

To ensure compliance with labor laws, employers in New York are required to keep accurate payroll records that include information such as the total hours worked each week, the rate of pay, and the number of overtime hours worked. Failure to comply with labor laws, including those related to overtime pay, can result in fines and penalties for employers.

Overall, the right to overtime pay for waitresses in New York City is protected by state and federal labor laws, and it is important for both employees and employers to understand their rights and responsibilities regarding this matter.

Uniform maintenance

In New York, if a uniform is required for work, employees may be entitled to additional compensation every week. This depends on the type of job and the number of uniforms provided. If an employer in the hospitality industry fails to give enough uniforms to cover the number of days an employee works each week, they must pay something called uniform maintenance pay.

Maintaining required uniforms includes washing, ironing, dry cleaning, alterations, repair, or any other maintenance necessary. If an employer does not maintain required uniforms, they must pay the employee uniform maintenance pay in addition to their regular wages. The amount of uniform maintenance pay depends on the number of employees in the workplace and the number of hours the employee works each week. Uniform maintenance pay is mandated up to $18.65 per week in extra pay for each employee who qualifies.

Employers in the hospitality industry must pay for employee uniforms and uniform maintenance. However, if a uniform is made of "wash and wear" materials, the employer is not required to pay uniform maintenance pay. "Wash and wear" uniforms can be routinely washed and dried with other personal garments and do not require ironing, dry cleaning, or any other special treatment.

Employers who launder their employees' uniforms at the workplace or pay an outside company to do so are exempt from paying uniform maintenance pay. Employees who choose to launder their uniforms are not entitled to a uniform maintenance allowance if their employer offers this service. To avoid paying a uniform maintenance allowance, the employer must offer free, reasonably frequent, and functional internal laundering services. Additionally, the employer must notify their employees of the laundry service in writing to qualify for the exemption.

If an employer does not launder or dry clean employee uniforms, they must pay employees a weekly uniform maintenance allowance.

Meal and rest breaks

Waitresses in New York are entitled to a meal break, but not a rest break. If a waitress works more than six hours, she is entitled to at least 30 minutes of unpaid time off. This break must be taken between 11 am and 2 pm, also known as the 'noonday meal period'. If a waitress starts work before 11 am and continues past 7 pm, she is entitled to a second meal break of at least 20 minutes, which must be taken between 5 am and 7 pm.

For shifts lasting more than six hours that start between 1 pm and 6 am, a waitress is entitled to a 45-minute meal break, which should be scheduled midway through the shift.

Factory employees in New York are subject to slightly different rules. If they work more than six hours, they are entitled to a 60-minute meal break between 11 am and 2 pm. They are also entitled to a 60-minute meal break if their shift starts between 1 pm and 6 am.

In some cases, the New York Department of Labor may allow an employer to offer shorter meal breaks. This special permission must be in writing and posted at the entrance to the workplace.

While New York law does not require employers to give employees a rest break, if an employer chooses to offer one, it must be paid (up to 20 minutes) and it counts towards overtime requirements under federal law. A rest break can include a bathroom break, a smoke break, or a brief time away from work to make a phone call or get a drink.

Wage deductions

In New York, the Division of Labor Standards ensures that employers do not make illegal deductions from workers' wages.

Illegal Deductions

Illegal deductions from a worker's wage include:

• Losses to the business
• Charges for check replacement
• Overcharges for paid family leave premiums
• Deductions not listed in Section 193 of the Labor Law

Legal Deductions

Some deductions from wages are legal, such as taxes or insurance premiums. Deductions from wages for pay advances or overpayments are only legal if they are made in accordance with Part 195.

Uniforms

An employer can require their employees to wear uniforms, but the cost of buying and/or taking care of a uniform must not bring the employee below the minimum wage. For employees working at minimum wage, the employer must pay for and take care of the uniforms. Ordinary clothing (such as black trousers and a white shirt) is generally not considered a uniform.

Tips

An employer may deduct a small percentage from the credit card tips left for employees.

Breakages and Losses

A restaurant cannot charge an employee for customer walkouts, breakage, cash shortages, fines, or other losses to the business.

Frequently asked questions