Uncover the Surprising Labor Laws for Restaurant Servers
By Tom Seest
At 6TopCharlie, we help people understand restaurant service by collecting information and news about restaurant service.
No matter the nature of your restaurant – from family dining to fine dining – all employees must be paid according to labor law. Failing to do so could result in legal claims being brought against the business and class actions being filed.
Restaurant server labor laws differ by state, yet all restaurants must abide by certain key standards.
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As more employees enter the restaurant industry, so does its need to abide by stringent labor standards. One factor that can have an effect is the minimum wage – which ensures servers and other tipped employees receive adequate incomes.
As minimum wages are a federal matter, each state often has different minimum wage laws on this topic and as a restaurant owner, you should abide by them accordingly to avoid violating them. For example, if your employee earns over $30 in tips per month in New York, they are also entitled to their state’s minimum wage, which currently stands at $3.63 an hour in addition to their tips.
Noteworthy of note is the requirement that tipped employees keep all of their tips. Employers may take out some credit card processing fees as long as no other deductions or paying below minimum wage occur in this process. Since this can be complex to navigate, it’s wise to consult an attorney prior to making any definitive decisions in this area.
Tracking employee time is also vital, such as keeping records of how many hours they work and making sure they receive compensation if work doesn’t appear in a time clock.
Minimum wages can have a profound effect on your business and staff. Before making decisions about their pay rates, it’s a good idea to consult a lawyer. Also, ensure your staff members don’t work “off the clock,” as this practice is illegal in most states.
Numerous laws exist to protect restaurant employees, from state and federal wage-and-hour laws to local wage-and-hour regulations. While laws vary depending on where employees work, most protect tipped workers in addition to minimum wages.
New York state laws SS 196-d and 12 NYCRR SS 146 provide protections to tipped employees in the restaurant industry from being paid less than minimum wage. Employers cannot retain a portion of tipped employee tips to pay non-serving staff; furthermore, employers cannot share tips with managers or supervisors.
Employers may still take a tip credit when an employee performs work outside of their tipped occupation. Examples include direct support duties like cleaning tables or refilling drinks, as well as preparatory activities like setting tables or making sure food supplies are readily available.
However, the Department’s proposed rule did not provide clear guidance as to which non-tipped duties would be classified as such and consequently, some commenters representing employers expressed concerns that its definition of “work that is not part of the tipped occupation” could be difficult to apply and enforce. These commenters noted, among other things, that the Department lacked legal standing to limit an employer’s ability to claim tip credits for employees who engage in any occupation, regardless of the type or nature of work performed by such employees.
There is nothing new under the sun than to discover something like this – so many thanks for coming along on my journey of discovery. In December 2020, the Department of Labor issued a final rule reflecting this guidance and clarifying that employers can claim tip credits for non-tipped duties performed related to an employee’s tipped occupation and in close proximity with any tip-producing activities performed contemporaneously or within an acceptable timeframe prior or subsequent to those activities. These requirements are intended to prevent employers from taking a tip credit for non-tipped duties performed solely to make themselves eligible and to alleviate confusion for employees as to whether their work will fall under non-tipped duties under the rules.
Overtime pay should be prioritized when considering employee compensation in restaurants, given that workers in food service industries often work long hours for various purposes – from set up and take down to closing clean up duties.
The law requires employees who work more than 40 hours in any one week to receive overtime pay – typically calculated as one and a half times their regular hourly wage for every hour worked overtime.
However, many restaurants fail to compensate employees for working extra hours in accordance with labor law. There are ways you can ensure that your staff are receiving their overtime pay.
Implement team management software to detect when your staff is about to exceed overtime limits and give yourself time to adapt their schedules and shifts as necessary to keep them compliant with applicable laws and regulations.
Good workforce management software will offer audit reporting to determine whether your staff is abiding by overtime regulations and overtime rules, in addition to tracking sick days and holidays to make sure you don’t run out.
Restaurant employees are entitled to paid sick leave and vacation time benefits that can make a substantial impact on employee well-being and productivity. Furthermore, it’s a good idea to train your staff so that they can cover each other’s shifts should sickness strike – this will ensure they’ll always be available when required!
Are You Seeking an Appealing Job that Pays Well and Excites People? Consider Becoming a Restaurant Server! This career option boasts excellent pay and benefits, with many restaurants accepting teens or adults without experience into this lucrative role.
Minimum Age to Be a Waiter/Waitress Varies by State/City Depending on where you reside; states have various minimum ages required of prospective waiters/waitresses in order to work as waiters/waitresses. Some require at least 16 years old, while others have an age minimum that exceeds this requirement.
Other minimum age requirements will depend on the type of restaurant in which you work. While high-end establishments will likely expect their employees to be 18 or over, most small eateries and fast-food joints can accommodate workers of any age.
As a waiter or waitress, no degree or work experience is required; however, physical stamina will play a vital role in this occupation. Expect long shifts, carrying heavy inventory items around with you while remaining standing for long stretches at a time.
Additionally, it is necessary for new employees to demonstrate an ability to effectively handle stressful situations and provide customers with friendly service. While some restaurants provide formal training programs for new hires, most employers prefer that new employees learn by experience on the job.
Waiters or waitresses who offer alcoholic beverages as part of their services to customers can sometimes also serve as bartenders; this option usually only exists within on-premises establishments that sell alcoholic drinks to their patrons. Most often, in order to be qualified as bartenders in restaurants serving alcoholic drinks to their patrons. In most instances, however, waiters or waitresses must be at least 21 years old in order to legally provide this service.
Federal Child Labor Laws prohibit minors from undertaking work that is considered hazardous, such as power-driven meat processing machines, commercial mixers, and certain power-driven bakery machines. They may, however, work non-hazardous jobs like acting, minor chores around private homes, and babysitting.
Restaurant servers must have access to safe, clean, and private restrooms when they require it. If their employers force them to wait more than an appropriate amount of time before being allowed access to a restroom, this may constitute a violation of their rights.
Restrooms must be equipped with soap, hand towels, and paper products and should be in excellent condition. In addition, there should be an easily lockable door as well as separated toilets with high partitions to keep out uninvited guests.
Employers must provide gender-segregated restrooms, if possible, and multiple-occupancy gender-neutral restrooms with lockable stalls for employee use.
Workers with certain medical conditions, including Crohn’s disease or ulcerative colitis, can gain special access to employee restrooms under Ally’s Law. Ally Bain was the inspiration behind Ally’s Law as she asked permission from her Illinois retail store manager in order to use the employee restroom when her IBD symptoms flared up unexpectedly.
Employees requiring access to the bathroom without being denied must present documentation describing their medical condition, which should allow for easy access. If their request for access is denied by their employer, they can file a formal complaint through local law enforcement agencies and seek justice by filing an official grievance.
No matter the reason for their restroom needs, workers should always be treated in an acceptable and respectful manner. Workers must not interfere with other customers‘ access rights to the facility and refrain from making unsanitary or offensive remarks about its facilities or its employees.
If you have any inquiries about restaurant server labor laws, don’t hesitate to reach out – Fitapelli & Schaffer, LLP are here to help you understand and uphold your rights.
Please share this post with your friends, family, or business associates who may become or are restaurant servers.