Your Right to Your Tips

By Leeds Brown Law | August 27, 2017

Are You Getting All Your Tips?

At Leeds Brown Law, P.C. our attorneys know that working as a food service worker is difficult. Every shift you depend on your customers to come through with good tips and generously supplement your meager cash wages.

If you are earning at least $30.00 per month in gratuities, you are considered a tipped employee. You are not alone. New York City, Long Island and the surrounding metropolitan area are home to tens of thousands of bars, restaurants, and catering facilities. These businesses employ hundreds of thousands of people.

You can’t always control how your customers tip. You may do a great job, but your patron had a terrible day and decided to be stingy. The kitchen may have messed up the order even though you put in the correct one. The runner may have splashed a drink on your customer. In what other job can your wages be so unpredictable and dependent on factors out of your control?

As a food service worker, your employer’s behavior can also affect the amount of tips that you take home. New York law and the federal Fair Labor Standards Act (FLSA) clearly state that tips are wages that belong to employees. Your tips belong to you. Unfortunately, employers in the restaurant and hospitality industries don’t always give their workers all the wages, including tips, the laws require. Tip-theft is wage-theft and occurs with great frequency in eateries throughout the nation.

Tipped employees who are victims of tip-theft tend to be bartenders, waitresses, waiters, catering servers and bussers. If you fall into one of these categories or are another tipped employee, call the unpaid wage lawyers at Leeds Brown. We can help you, and your co-workers collect the money your employer owes.

How Employers Commit Tip-Theft

Tip-theft in New York City and Long Island restaurants is more common than many realize. Most customers never dream that the tip they leave for their server might end up in the pocket of someone else.

If you are a tipped worker, understanding the ways that your employer might be violating your rights, may help you protect yourself. Don’t let your employer steal your tips or other wages that belong to you.

Disguising tips as “service fees” and keeping them from you-

New York has a clear position on service charges: when your employer adds a percentage to the bill for a big group, party, or banquet, the presumption is always that the money is a gratuity for the employees.

However, employers frequently try to keep this money for themselves. Employers may only retain this percentage if they have made it clear to the customer that they will not be giving it to the employees. The burden is on the employer to notify the patron that the money is not a gratuity for the workers. If your employer does not make it known to the customer, the tipped employees have the right to collect those wages.

Illegal Tip Pooling

If you are a tipped employee, you likely know what a tip pool is. A tip pool is an arrangement where all tipped workers combine their tips. The tips then get redistributed to the members of the pool. In this way, all the workers earning tips benefit from collective hard work. However, a tip pool may not have any non-tipped employees in it. If you are in a tip pool with kitchen or other “back of the house” help, supervisors, managers, the owner, or other employees who do not regularly receive tips, the pool is not legal.

Not Giving You Your Tips

Believe it or not, restaurant owners and other staff members often demand that employees turn over their tips. If your employer or manager take any portion of your tips to use personally or for the business, it may be unlawful tip-theft.

Using Tips For Entire Credit Card Fees

Under New York Law, when a customer leaves a tip on a credit card, your employer may deduct a percentage of your tips and put that money towards any finance fee the credit company charges. However, many employers deduct the entire fee from their employees’ tips. Your employer may only take a pro-rated portion of your tip to go to the fee. For instance, if the credit card company charges a 2% transaction fee, your boss may take 2% of your tip to put toward the fee.

Misuse of The Tip Credit

When you are a tipped employee, your employer does not have to pay you the full cash minimum wage. Restaurants may pay food service workers the tipped minimum wage which is a reduced cash amount that gets supplemented by a “tip credit.” The maximum tip-credit is set by law, and your employer must notify you of its intention to apply it. Failure to do so violates the law, as does use the incorrect amount. Many employers apply the wrong tip credit, usually too much, and fail to pay an adequate cash wage to employees. This is a misappropriation of your tips.

Contact Us to Discuss Your Right to Keep Your Tips

You have the right to file a claim in New York when your employer steals your tips or other wages. Tipped workers call Leeds Brown for help with this process. If you are a bartender, waiter, waitress, catering server or busboy, you can benefit from our decades of experience helping resolve wage disputes in the restaurant and hospitality industries.

You can reach Leeds Brown 24/7 at 1-800-585-4658. We may be able to help you and your co-workers collect the tips your employer owes. Time may be of the essence so don’t wait to call for your free evaluation.

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