General Question

LeavesNoTrace's avatar

A possibly illegal labor situation at work. (New York State)

Asked by LeavesNoTrace (2534 points ) September 3rd, 2012

I started working as a waitress in a New York City restaurant between jobs and I’m pretty sure what my employer pays me is under NYS minimum wage for restaurant servers.

I work a 12 hour day and make a flat rate of $35 + tips. Business has been super slow the first week and I’ve only been getting about $20 in tips since we are kind of overstaffed and the (salaried) manager takes part of our tips. How much? I don’t know.

My daily hourly rate works out to 2.92 and hour without tips. Isn’t the minimum wage for a server in NYS $4.65? I’m having trouble finding a straight answer online.

Today I made my $35 flat rate for my 12 hour shift plus $23 in tips. Which equals $58. Therefore, I made $4.83 an hour overall. This does not equal the legal state minimum wage of $7.25.

I haven’t filled out any paperwork yet but they said I would be filling a 10–99 yet.

Is this legal? If not, do I have any recourse?

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26 Answers

gailcalled's avatar

Are there any other staff members in a similar situation whom you could talk with, off the record?

LeavesNoTrace's avatar

I have spoken to another coworker today and he agrees it’s very sketchy.

They also hired a very inexperienced staff (very unusual for NYC restaurants) and I suspect this is because they wanted people who don’t know their rights.

gailcalled's avatar

How important is the job to you? If you squeal, which you have every right to, the restaurant may be closed down.

$58 for 12 hours of work seems like slave labor to me. Can all of the staff act as a coherent group and challenge the salaried manager? Strength in numbers?

Is the manager supervised by an owner?

tinyfaery's avatar

They have to pay you at least $7.25 an hour, including tips. So in other words, you cannot make less than $7.25 with those tips.

That’s just hideous. (Another reason I love where I live.)

So many small businesses pay illegal wages. I can’t even tell you all the illegal things I’ve seen go down at the places I have worked.

Nullo's avatar

Be warned that there are potential consequences beyond simply being fired, if you blow the whistle, like difficulty finding another job.

@tinyfaery I thought you love where you live?

YARNLADY's avatar

It’s all a matter of company policy.

jca's avatar

@YARNLADY: Company policy cannot supercede the law.

@LeavesNoTrace: There must be the NYS Labor Law poster posted in a conspicuous area that tells what the minimum is for servers.

I don’t understand wny the salaried manager gets to take part of your tips. I never heard of that before. You can always call NYS Labor Dept and ask them about the minimum for servers and if what’s going on is legal.

Adirondackwannabe's avatar

NYS minimum wage for those in the hospitality industry is $5.00 as long as you make $2.25 in tips. It can not be less than $7.25 including tips. Check out the NYS Department of Labor web page. It spells it out pretty clearly.

LeavesNoTrace's avatar

@Nullo I’m going to do it anonymously. And quite frankly I’m not worried about it. This is a between jobs gig for me and I have several interviews lined up.

dabbler's avatar

@Adirondackwannabe points the right direction. “NYS Department of Labor” The labor boards in NYC are very sympathetic to genuine worker issues.

I would not worry so much about finding another job at another restaurant in NYC. There are just too many of them and employers can’t possibly network that much. Any reputable restaurant wouldn’t care about the opinion of your current crook employer, and if another place you go does consider your current employer then that’s a good reason to stay away from them too.

Tropical_Willie's avatar

1099 means you are a contractor with ALL tax liabilities in your court including self-employment taxes and no withholding of taxes.
There is no worker comp insurance.
I would leave now.

Adirondackwannabe's avatar

I wasn’t going to go this far, but after thinking about it, your employer is a miserable prick that’s violating so many laws and he’s stealing from you. Unless you set your own hours and make your own schedule you are an employee, not a contractor. He has to have workers compensation insurance, disability insurance, pay unemployment insurance, and withhold FICA and Social Security taxes. The Department of Labor is just a start. Also let the Workers Compensation Board know what’s going on and the IRS. The fine for no workers comp on employees is $10,000 per case.

jca's avatar

You could rat on him and get him in big trouble. I would consider that.

LeavesNoTrace's avatar

I’ve called New York dept of labor and they gave me a case number. Said someone would be calling me to discuss my complaint. I hope they do.

On the bright side I have two interviews for good career opportunities this week and hopefully more to come. Hope to be out of this place soon.

Tropical_Willie's avatar

@LeavesNoTrace Good move. Maybe you’ll able to collect wages owed.

LeavesNoTrace's avatar

@Tropical_Willie I hope so.

Part of me feels bad because my employer is so ‘nice’ to me in other ways. Tells me what a great job I am, how ‘pretty’ I am lets me drink the wine etc. But that’s not enough to LIVE on and part of me thinks they just try to placate me with niceties to draw attention away from the fact that they don’t PAY me enough.

philosopher's avatar

@LeavesNoTrace
I Goggled it and found a lot of Grey areas.
http://employment.laws.com/employee-rights/new-york-employee-rights
I know someone who once worked as a claims examiner. I will ask them.
The people who know the law best are examiners.
It sounds like the boss is stealing your tips.
You could ask a lawyer but few know Labor Law well.
Look up your questions on Google.

Adirondackwannabe's avatar

@LeavesNoTrace Guess what’s coming next after how “pretty you are ”?

Nullo's avatar

@LeavesNoTrace Then I say let ‘em have both barrels. Figuratively, that is. Otherwise you’re just asking for trouble. XD

jca's avatar

I have never been a waitress but I have never heard of management getting part of the tips.

LeavesNoTrace's avatar

@Adirondackwannabe I know… :-x

@jca It depends on the place. One place I worked, head waiters got a cut of the tips but not the maitre’d. Either way, it’s the minimum wage and not making up my lack of tips to $7.25 part that pisses me off.

@philosopher I’m trying Google but I’m having time finding more definite answers about what flies and what doesn’t.

Adirondackwannabe's avatar

@LeavesNoTrace Okay. Good. A guy that would do this is so low on the scum level we both know what’s next on the sleeze level.

philosopher's avatar

@LeavesNoTrace
Check this site and contact them by email or phone.
I would tape this pig if, he is sexually harassing you. Little tape recorders work. Never let anyone touch you. Make No very clear.
You could sue if,you can prove sexual harassment.

LeavesNoTrace's avatar

@philosopher Thanks! What is the site?

My boss is female by the way, and I don’t feel sexually harassed by her. I’m just upset over the pay situation.

Adirondackwannabe's avatar

@LeavesNoTrace That’s ironic. Most of us assumed the boss was male.

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