Waitress taking somebody's order

Many restaurant workers face physically demanding jobs requiring them to be on their feet performing repetitive tasks for extended periods. If you’re a restaurant worker in New York, you may be considered a manual laborer and be entitled to receive your paycheck once per week.

Restaurant workers generally do enough physical labor to be considered manual workers. If you’re a restaurant worker and your employer is not paying you once a week, you could be entitled to damages. The experienced New York employment attorneys at Lipsky Lowe LLP are prepared to answer your questions and help you understand your legal rights.

Manual Laborers Must Be Paid Weekly in New York

Many restaurant workers need to receive the full amount of payments they deserve. Restaurant work is often a low-paying position; workers rely on tips and being paid regularly to make ends meet. Being paid every two weeks as a restaurant employee can be a hardship, making it difficult to pay bills and cover living costs. New York passed New York Labor Law (NYLL) Section 191 to help manual laborers receive a more steady income. 

Under this law, employers must pay manual workers weekly, and within seven calendar days of the week the employee earned the wages. This law’s purpose is to ensure manual workers don’t suffer because of undue delays in paying their wages. The weekly wage requirement applies to all for-profit and private employers.

Most Restaurant Employees Are Considered Manual Laborers

The New York Department of Labor determines whether an employee is considered a manual laborer on a case-by-case basis. An employee will need to show that his or her job predominantly involves physical labor or physical skills to be considered a manual worker. 

The Department of Labor has ruled that workers in many industries, such as restaurant workers, factory workers, construction workers, and many others who perform manual labor, are considered manual workers as a significant aspect of their employment. 

Specifically, the Department of Labor defines manual laborers as those who spend 25% or more time performing physical tasks. Physical tasks are those that require movement of the body and expending energy. Walking, cleaning, moving boxes, and other daily tasks restaurant workers perform are considered physical activities.

Working at a Restaurant Requires Significant Physical Labor

Most employment positions at restaurants require significant amounts of physical labor. The physically demanding and high-stress environment of working in a restaurant can be intense. Servers must walk to and from the customers’ tables, walk to the kitchen, refill drinks, and take the customer’s drinks and food to the table. All of these tasks are considered physical labor. 

Bussers must clear tables of food and dishes and prepare the tables for the next guests to arrive. Kitchen staff must wash dishes, clean, prepare, cook, and plate the food for guests. Front-of-house staff must stand and greet customers who enter the restaurant, manage reservations, and walk customers to their tables. Restaurant workers may be required to lift heavy objects such as boxes of supplies. 

Recovering Damages for the Failure to Receive Weekly Payments

In 2018, a New York appellate court interpreted New York’s wage payment laws regarding manual workers in Vega v. CM & Associates Construction Management, LLC. The plaintiff sued his employer for failing to pay him weekly wages, claiming he was a manual worker. In the ruling, the appellate court stated that manual workers paid weekly instead of once a week are entitled to liquidated and other damages from their employer through a civil lawsuit. 

Even if the employer had paid the employee the full amount of wages he or she earned, the employee could still pursue damages if the payment wasn’t once per week. Receiving payments twice monthly is considered late when the employee is a manual worker. Failure to comply with New York labor law can result in serious legal and financial consequences for employers. 

Suppose your employer has failed to pay you weekly, and you work at a restaurant. In that case, you may be entitled to liquidated damages in the amount of 100% of your delayed wages in addition to interest and attorney fees and costs. Speaking to an attorney to determine whether you’re entitled to liquidated damages for late payments can be a worthwhile investment in your future.

Wage Theft in the Restaurant Industry

Unfortunately, delayed payments aren’t the only type of wage violation in the restaurant industry. Although restaurant workers are some of the hardest working employees, they’re also the most common victims of wage violations. Restaurants can use a “tip credit,” so the tips earned count towards the employee’s minimum wage that they’re required to pay. 

Restaurants can violate this policy by refusing to inform employees that they are claiming the tip credit, withholding some of the employee’s tips, and failing to pay the employee minimum wage. In other cases, restaurant employers fail to pay employees the correct overtime rate for working 40 hours a week. Additionally, if tip pooling occurs, it’s unlawful for back-of-the-house employees such as cooks and dishwashers to receive tips, gratuities, or service charges. 

Discuss Your Case with an Employment Attorney in New York

The attorneys at Lipsky Lowe LLP have a proven track record of successfully fighting for the rights of New York employees. If you are a restaurant worker and haven’t been paid weekly by your employer, you could be entitled to damages. Discussing your case with an attorney can help you understand your legal rights. Don’t hesitate to contact the skilled employment attorneys at Lipsky Lowe LLP to schedule a complimentary case evaluation and learn whether you may be entitled to compensation.