You make a deal with your employer to receive fair wages in exchange for a good day or night’s work. This can be a little more complicated than other professions if you are a restaurant worker, but we can make sense of it for you and answer any questions you have. Some of the confusion occurs because salaried restaurant workers like managers and hourly workers are paid differently than servers, who earn tips and are exempt from some laws.
Let’s start with the minimum wage. If you bus tables or cook— which do not involve being tipped—you are entitled to be paid the higher of your state’s minimum wage or the federal minimum wage, which is $7.25 an hour. If you receive tips for serving guests, your tips and your base pay must equal the higher of your state’s or the federal minimum wage for tipped employee’s, which is $2.13 an hour. The federal tipped minimum wage is $2.13 an hour compared to the standard $7.25 minimum wage. $2.13 + tips must equal higher of 7.25 or state minimum wage. Of course, there are exceptions. Some states require your employer to pay the full state minimum wage without regard to tips.
So, what about overtime pay? What if your employer is in a jam and asks you to work an extra shift, bringing your hours to 50 in one week?
Overtime Pay and Restaurant Workers
Under the federal Fair Labor Standards Act (FLSA), restaurant employees who are not exempt from minimum wage laws (tipped workers) and salaried workers must be paid time and a half if they work more than 40 hours in one workweek. This means workers are entitled to their base pay for the first 40 hours and their base pay plus half again for any hours exceeding 40. By law, an employer cannot hold back overtime by averaging your hours. For example, if you are a restaurant cook and work 50 hours one week and 30 hours the next, your employer cannot average 80 hours over two weeks and short you overtime for the 10 hours you worked over 40 in Week 1.
State Laws May Differ
Remember, state laws differ and that is why you need an experienced overtime attorney who understands what might be different in your state and more beneficial to you. For instance, in California, tipped servers are paid a minimum wage of $16.00 an hour and generally keep their tips, which do not count toward the minimum wage, called a tip credit. However, tip pools with special provisions are legal. Tipped workers in California are also paid time and a half overtime, which does not affect their tips.
New York employers must pay tipped workers overtime hours worked at time and a half the minimum wage rate, less the state’s applicable tip credit.
As you can see, the state laws are nuanced, but you must still consider the FLSA when determining overtime laws. Don’t worry; our lawyers have the answers, no matter where you live.
Do Restaurant Workers Earn Time and a Half for Holidays?
The FLSA does not require the private sector to give you the day off for a holiday or pay you time and a half if you work it. Again, state laws vary. Many employers also are aware that offering such perks is good for employee morale and is often used to hire and retain the best workers. Does your employer provide an employee handbook? Sharing pertinent parts of it with us, along with our widespread knowledge of state and federal labor laws, can get you the answers to what you are entitled to as a restaurant employee.
Our Attorneys Can Help You Better Understand Restaurant Time and a Half
You have questions about your rights as a restaurant worker, and we have answers. We offer a free and confidential review of your situation.
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