Businesses in the restaurant industry, including restaurant owners, frequently fail to pay their employees the overtime they deserve. All employers must follow federal, state, and local wage laws, including food industry employers. Every day, food industry employees, including servers, chefs, bartenders, dishwashers, and front-of-house staff, have been wrongfully denied their overtime wages.

Discuss Your Unpaid Overtime Case with a Restaurant Industry Employee Based Attorney

If you work in the food industry and you believe that your employer hasn’t been paying you overtime, it’s time for you to discuss your case with an attorney. Many food industry employees are afraid of retaliation. An attorney can help you enforce your rights. Employers cannot fail to pay you the legally required amount of overtime you deserve, and they are prohibited from retaliating against employees who file a claim against them. Contact Lipsky Lowe LLP today to schedule your free initial consultation to learn more about your legal rights.

Unpaid Overtime Laws in New York City

At minimum wage, employees are guaranteed to be paid at least a minimum wage for their work hours. When an employee works more than 40 hours in a week, they are entitled to pay at the rate of one and a half of their usual hourly wage. Wage theft is far too common. The federal Fair Labor Standards Act of 1938 (FLSA) requires food industry employers to pay a minimum wage of $7.25 per hour. The minimum wage in New York City is currently $15 per hour. 

Employers must pay non-exempt employees for time and a half their typical hourly rate for hours worked over 40 hours in one week. Under the FLSA, an employee has two years to file an unpaid overtime claim in federal court. If the violation was willful, they have three years to file. Employees can recover their unpaid overtime, attorney’s fees, and liquidated damages for double the amount the employee owes the employee.

How Restaurant Industry Companies Violate Overtime Wage Laws

Overtime wage abuse has happened far too often in the New York City restaurant industry. Restaurant owners may knowingly or unknowingly violate overtime laws in various ways. An employer may wrongly classify an hourly employee as an assistant manager to try to exempt the employee from overtime pay benefits. Under federal and state laws, only salaried employees in management positions are exempted from receiving overtime. When an employer wrongly classifies someone who serves food, cleans, bartends, or hostesses as a manager to avoid paying overtime, the employee can hold them accountable by filing an unpaid overtime claim.

In other cases, employers blatantly refused to pay overtime pay rates when employees work over 40 hours a week. When a restaurant or restaurant chain fails to pay one employee overtime, there is a strong possibility that other employees have been victims of unpaid overtime. Other examples of unpaid overtime violations include:

  • Tips taken away by management
  • Avoidance of paying overtime
  • Refusal to pay any hourly wage to wait-staff
  • Failure to pay overtime for trainees 
  • Charging servers for unpaid bills
  • Misappropriating a service charge

Am I Entitled to Overtime Pay?

New York State has similar overtime pay requirements as the FLSA, but employees have six years to sue for unpaid wages under New York law. In some cases, it’s possible to combine federal and state law claims and let it get them both at the same time in a federal court to maximize your recovery. Employees considered professional, administrative, or executive are exempt from overtime laws. Food industry employers may try to wrongly classify an employee as an executive or professional to avoid paying them overtime. If you think this is happening to you, it’s essential that you reach out to an attorney as soon as possible.

Fast Food Employees and Restaurant Tip Credit Workers and Unpaid Overtime 

When a food service worker works over 40 hours a week, they are entitled to overtime wages. Based on New York City’s current minimum wage, an hourly fast-food employee paid minimum wage is entitled to $22.00 per overtime hour worked. Restaurant workers who receive tips are still protected by overtime pay loss. If a tipped employee receives overtime pay, they are still entitled to at least one and a half times their regular pay rate. When an employer pays less than the minimum wage due to using a valid tip credit, the employee’s regular rate of pay still needs to be calculated based on the full minimum wage.

Under New York law, employers must pay workers an additional one hour of pay at the standard minimum wage if they work over ten hours in one workday, called the spread-of-hours rule. Under this rule, an employer can’t use the tip credit to reduce the hourly rate for spread-of-hours pay. However, the extra hour paid does not count when calculating whether an employee is entitled to overtime. 

Under the FLSA, tipped employees must be paid a minimum of $2.13 per hour. The rest of the hourly pay can come from tips. If the tips don’t add up to the minimum wage, which is $15 in New York City, the employer must compensate the remaining amount. Employers must also pay a tip credit to ensure the employee takes home time-and-a-half for any hours they work overtime. The tip credit worker’s law is complex, especially for employees who share in tip pools and work overtime. If you believe you haven’t been paid enough for working overtime as a tip credit worker, we recommend discussing your case with one of our attorneys. 

Learn How to Earn Back Your Overtime Wages in New York City

If your employer has been negligently or maliciously failing to pay you overtime, you have a right to pursue compensation. The skilled employment law attorneys at Lipsky Lowe LLP will fight for your rights by determining whether you have a valid claim, advising you on the best course of action, and holding your employer accountable. Contact our skilled employment attorneys at Lipsky Lowe LLP today to schedule your free case evaluation and learn more about your legal rights and options.