New York State Wage Laws and How They Apply to Restaurants and Bars

With the new year comes an increase in the minimum wage in New York to $8.00 per hour.  For many business owners, there is a sigh of relief that it did not reach the suggested federal minimum wage of more than $10 per hour.  In the food service industry, employers are permitted to pay a lower hourly wage if the employee’s tip income would bring the total compensation over the minimum wage.  A food service worker must receive a wage of at least $5.00 per hour and the employer may take a credit for tips up to $3.00 per hour provided that the total of tips received plus the wages equals or exceeds $8.00 per hour for each employee.

The wage increases continue for the next two years as well, but it will not impact food service employers as much.  On and after December 31, 2014, a food service worker shall receive a wage of at least $5.00 per hour and credit for tips can be as much as $3.75 per hour (provided that the total of tips received plus the wages equals or exceeds $8.75 per hour).  On and after December 31, 2015, a food service worker shall receive a wage of at least $5.00 per hour and credit for tips can be as much as $4.00 per hour (provided that the total of tips received plus the wages equals or exceeds $9.00 per hour).

Food Service Minimum Wages

Cash Wage & Tip Credits (per hour)

Wage

Tip Credit

Food Service Worker

$5.00

$3.00

Executive & Administrative Exemption

Minimum weekly salary required

$543.75

 

Food Service Wage Deductions

 

Uniform Maintenance Rate (per week)

 

Payroll Deductions

Over 30 Hours

$9.95

Over 20 to 30 Hours

$7.85

20 Hours or Less

$4.75

Meal Credits (per meal)

Restaurant Service & Food Service Workers

$2.50

Lodging Credits

Restaurants – per day / Food Service Worker

$1.50

Restaurants – per week / Food Service Worker

$9.60

Hotels & Resort Hotels; without meals – per hour

$0.35

 

Overtime Pay

Most employees must receive overtime pay at the rate of 1½ times their regular rate of pay for all hours worked over 40 in a workweek.  The overtime rate of pay is always 1½ times the regular rate of pay. For example, $10.00 per hour regular rate = $15.00 per hour overtime rate.

For tipped employees earning a cash minimum wage less than the tip credit, the overtime rate is always 1 ½ times the minimum wage rate minus the applicable tip credit.  For example,

$8.00 x 1.5 = $12.00 – $3.00 tip credit = $9.00 Overtime Rate (plus Tips)

Spread-of-Hours Pay

Labor law protects employees in situations where their working hours are spread out over a long period.  For example, a waitress or bartender whose scheduled hours are 11 AM – 2 PM and 5 PM – 10 PM.  Over a period of 11 AM – 10 PM (exceeding 10 hours) the employee is scheduled for 8 hours.  Since the “off” period is short, the employee is entitled to $8 pay for this period.

An employee shall receive one hour’s pay at the basic minimum hourly wage rate, in addition to the minimum wage for any day in which:

(a) the spread of hours exceeds 10 hours; or

(b) there is a split shift; or

(c) both situations occur.  Only one hour of pay at the $8.00 per hour rate must be            paid even where both situations occur in a single day.

Call-in Pay

Call-in pay compensates employees who are subject to be called to work at any time during the call-in period.  This law recognizes that employees are not entirely free in their personal lives – the effectively can’t travel, consume alcoholic beverages, or freely enjoy personal liberties.  This should be compensated in some fashion.

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