New York Waiters and Hotel Employees

The New York Hospitality Industry Wage Order (Wage Order) provides service and non-service employees employed in restaurants, hotels, resorts and other covered entities with the following wage and hour protections:

Notice Provisions: Employees must be provided with a written notice of pay prior to the commencement of their employment and at any time there is a change to their rate of pay. This information must be made available to the employee in English and in the employee's primary spoken language. This notice must identify the following: (1) the employee's hourly rate of pay, (2) the employee's overtime hourly rate of pay, (3) the amount of the tip credit being taken (if applicable), (4) the employee's regular payday, and (5) when extra pay is required if the actual tips earned are insufficient to bring the employee up to the basic minimum hourly rate. Employers must retain a copy of the notices and the employee's signed acknowledgment of receipt of the notice for a minimum of 6 years.

Payroll Records: Employers must establish, maintain, and preserve, for at least 6 years, weekly payroll records that identify each employee's (1) name and address; (2) Social Security number or other employee identification number; (3) occupational classification; (4) number of hours worked daily and weekly, including the time of arrival and departure for each employee working a split shift or spread of hours exceeding 10; (5) regular and overtime hourly wage rates; (6) amount of gross wages; (7) deductions from gross wages; (8) amount of net wages; (9) tip credits, if any, claimed as part of the minimum wage; (10) meal and lodging credits, if any, claimed as part of wages; (11) money paid in cash; and (12) student classification. These records should also indicate whether the employee has been issued uniforms maintained by the employer.

Pay Rates: The minimum wage in New York is $7.25 per hour and overtime pay remains at 1-1/2 times the regular rate for hours worked in excess of 40 hours per week. The Wage Order further provides that hourly rates of pay are required for all non-exempt employees who cannot be paid on a daily, weekly, salary, piece rate, or other non-hourly basis.

Tip Credits: Employers who apply a tip credit to an employee's wages must notify the employee in writing of his/her tip credit wage, regular pay rate, and pay date at the commencement of employment. Effective January 1, 2011, the minimum hourly wage rate for tipped food-service employees is $5.00, thereby entitling the employer to take a tip credit of $2.25 per hour. The minimum hourly wage for service employees earning tips is $5.65, similarly having resulting in a tip credit of $1.60 per hour. The minimum hourly wage for tipped service employees in the hotel industry is $4.90, thereby resulting in a tip credit of $2.35 per hour. Service employees or food-service workers who work a non-tipped occupation for 2 or more hours, or more than 20% of their shift, whichever is less, shall not be subject to the tip credit for the day. Under FLSA, an employee must receive more than $30 per week in order to be considered a "tipped" employee.

Spread of Hours Pay: Employees are entitled to receive an extra hour of pay at the minimum wage rate of $7.25 if the employee works more than 10 hours in a day and/or they work a split shift that covers more than 10 hours in a day. The term "spread of hours" is defined as the interval between the beginning and end of an employee's workday, and includes working time, plus time off for meals, plus intervals of off-duty time. An employer may no longer avoid paying an employee this additional hour of pay based on the total amount of compensation that the employee earns in a week. The additional hour of pay cannot be offset by any credits for meals or lodging.

Tip Pooling: Employers in the Hospitality Industry can require tip pooling for "eligible employees," including wait staff, counter personnel who serve food or beverages to customers, bus persons, bartenders, barbacks, food runners, captains who provide direct food service to customers, and hosts who greet and seat guests. Employers must keep detailed tip pool records for at least 6 years. Such records must include (1) a daily log of all cash and credit card tips received by each employee from guests; (2) a list of occupations the employer deems eligible to receive tips through a tip-sharing or tip-pooling program; (3) the share of tips each occupation is scheduled to receive from the tip-sharing or tip-pooling program; and (4) the amount in tips each employee receives from the tip share or tip pool, by date. Employees have the right to inspect their own tip records, but not the tip records of any other employee.

Service Charges: Under the Wage Order there is a rebuttable presumption that any charge made to a customer that is not specifically enumerated as being for food, beverage, or lodging, including any charge for "service" or "food service," is a gratuity.

Administrative Charges: In order for Hospitality Industry employers to retain a charge for the administration of a banquet, special function, or package deal, the employer must clearly identify the charge as an "administrative" charge and notify the customer that the charge is not a gratuity or tip and that it will not be distributed as a gratuity to the employees who provided services. This disclosure must be in "ordinary language readily understood" and appear in a font size similar to surrounding text and be no smaller than "12-point font."

Credit Card Fees: Hospitality Industry employers may deduct from tips left on a credit card for an employee, the amount of credit-card processing fees actually incurred on that charge for employee tips on a pro rata basis.

Meal Credits: Where an employee's shift is long enough to require a meal period, employers must either allow employees to bring their own food or give them a meal at no more than the meal credit amount. Employers may apply meal credits against employees' wages at the rate of $2.50 per meal. A credit for more than one meal is not permitted for any employee working fewer than 5 hours on any given day.

Call-In Pay: Employers in the Hospitality Industry must pay the following to employees who report to work at the "request or permission" of the employer:

  • At least 3 hours of pay (or the number of hours in the regularly scheduled shift, whichever is less) at the employee's applicable wage rate
  • At least 6 hours if he or she reports for two shifts totaling 6 hours or less (or the number of hours in the regularly scheduled shift, whichever is less)
  • At least 8 hours for 3 shifts totaling 8 hours or less (or the number of hours in the regularly scheduled shift, whichever is less)

Uniform Allowances: Under the Wage Order, in order to qualify for the so-called "wash and wear" exemption, such that the employer does not have an obligation to pay the cleaning allowance if the uniform:

  • can be washed by the worker with his or her other garments, the employees' required uniform must be made of wash-and-wear materials;
  • is able to be routinely washed and dried with other personal garments;
  • does not require ironing, dry cleaning, daily washing, commercial laundering, or other special treatment; and
  • is furnished to the employee in sufficient numbers-consistent with the average number of days per week worked by an employee.

In cases where an employer does not maintain required uniforms for any employee, the employer shall pay the employee, in addition to the employee's agreed-upon rate of pay, the following uniform maintenance pay:

  • $9.00 per week if employee works more than 30 hours
  • $7.10 per week if employee works more than 20 hours but fewer than 30 hours
  • $4.30 per week if employee works fewer than 20 hours

If you have any questions or need more information concerning your specific wage and hour issues, please call us at (914) 949-2700 or use our email form to get in touch with New York Labor and Employment Attorneys.