Restaurant Labor Laws Cheat Sheet: New York State

Restaurant Labor Laws Cheat Sheet: New York State
7shifts Staff

By 7shifts Staff

Updated: November 10, 2023

Disclaimer: The information contained in this article is general in nature and businesses should consider whether the information is appropriate to their needs. Legal and other matters referred to in this article are based on 7shifts' interpretation of laws existing at the time and should not be relied on in place of professional legal advice. 7shifts is not responsible for the content of any site owned by a third party that may be linked to this article and no warranty is made by 7shifts concerning the suitability, accuracy or timeliness of the content of any site that may be linked to this article. 7shifts disclaims all liability (except for any liability which by law cannot be excluded) for any error, inaccuracy, or omission from the information contained in this article and any loss or damage suffered by any person directly or indirectly through relying on the information contained in this article.

For the most up to date information, please visit this New York state resource.

As if serving delicious meals, creating incredible guest experiences, and gaining a sustainable market wasn’t tricky enough, restaurateurs in both the state and the city of New York must also focus on another complex task: navigating the many New York restaurant labor laws.

With labor laws on age, wage, overtime, and time off—many of which vary between New York State and New York City—it’s easy to overlook a law or two. However, these oversights are rarely excused and can cost your restaurant big time. Au Bon Pain was fined $1.2 million for violating NYC’s Fair Workweek Law, which requires employers to set schedules 14 days in advance.

The sheer number of New York restaurant laws can threaten to overwhelm. Still, given the state’s population of nearly 20 million, these laws provide a level of blanket protection for New York’s restaurant-goers and employees.

A quick disclaimer, though: this post is intended to provide a general overview of these laws and does not constitute official legal consultation. Seek the advice of legal counsel to learn about how these laws apply directly to your business, and to learn of any changes since this post’s last update.

Employee Pay Laws in New York

New York Minimum Wage

The minimum wage for restaurant workers in New York depends on role, location, the restaurant they worked in, and what date you’re reading this. Additionally, the number of employees who work for your restaurant can dictate your minimum wage. In the eyes of New York law, your list of employees includes all employees on payroll for restaurants you own—even if they work at different locations.

Until 12/31/23, the restaurant hourly minimum wage is as follows:

Until 12/31/23 New York City Long Island / Westchester New York (Other)
Food Service Worker, Tipped $10 with $5 tip credit $10 with $5 tip credit $9.45 with $4.75 tip credit
Food Service Worker, Non-tipped $15 $15 $14.20
Fast Food Worker $15 $15 $15

From 01/01/24 to 12/31/24, the restaurant hourly minimum wage is as follows:

01/01/24 to 12/31/24 New York City Long Island / Westchester New York (Other)
Food Service Worker, Tipped $10.65 with $5.35 tip credit $10.65 with $5.35 tip credit $10 with $5 tip credit
Food Service Worker, Non-tipped $16 $16 $15
Fast Food Worker $16 $15 $15

Which employees are considered tipped?

A food service worker is considered tipped if:

  • They work in an occupation where they regularly receive tips each work week.
  • They spend less than 20% of their time doing untipped work.

Which restaurants are considered fast food?

According to the New York Department of Labor, a restaurant is considered a “fast food restaurant” if it:

  • Primarily serves food or drinks, including coffee shops, juice bars, donut shops, and ice cream parlors
  • Offers limited service where customers order and pay before eating, including restaurants with tables but without full table service and places that only provide take-out service
  • Is part of a chain of 30 or more locations, including individually-owned establishments associated with a brand that has 30 or more locations nationally.

A fast food worker is any person employed for a fast food establishment whose job duties include: customer service, cooking, food or drink preparation, delivery, security, stocking supplies or equipment, cleaning, or routine maintenance.

Restaurants in New York must display the state Minimum Wage Poster, in addition to the restaurant-specific Deductions From Wages Poster and Tip Appropriation Poster, in their restaurant. You can access the posters here.

New York Tipped Minimum Wage

Like most states, New York allows employers to pay servers a tip credit wage rather than the full minimum wage if the tips make up the difference. See the chart below to see how much servers and bartenders should be paid and how much you’ll have to chip into their paychecks yourself:

Part of New York Cash Wage Tip Credit
New York City (Until 12/31/23) $10 $5
New York City (Effective 01/01/24) $10.65 $5.35
Long Island / Westchester (Until 12/31/23) $10 $5
Long Island / Westchester (Effective 01/01/24) $10.65 $5.35
Remainder of New York State(Until 12/31/23) $9.45 $4.75
Remainder of New York State (Effective 01/01/24) $10 $5

Read more about New York state tip laws here.

Tip Pooling in New York

Here are some basic laws for tip pooling in New York State:

  1. Restaurateurs are permitted—but not mandated—to require tip pooling.
  2. The only people who may participate in the tip pool are front-of-house employees who “perform, or assist in performing, personal service to patrons.”
  3. Employee contributions to the tip pool must be “reasonable or customary” (i.e. don’t ask a waitress to hand over half of her tip to the busboy).
  4. If an employee withholds tips from the tip pool, employers are not liable to make up the amount lost to an employee who missed out as a result.
  5. The employer has no legal claim to the money in a tip pool.

If a restaurant owner pockets tips from the register, it’s considered wage theft. Brioso on Staten Island settled a lawsuit for $700,000 after employees accused management of wage theft.

New York Restaurant Overtime Law

Overtime pay in New York is 1.5x the employee’s normal hourly wage and is required for all hours worked in excess of 40 hours. Employees cannot waive this right, so offering employees extra shifts if they accept their normal rate of pay won’t save you from those back pay lawsuits.

New York Split Shift Pay

Split shifts are allowed in New York restaurants—but there’s a catch. If the time between an employee’s start and end to the workday exceeds 10 hours, that employee is entitled to spread-of-hours pay, which requires one additional hour of minimum wage pay for the day.

If you have a host come in from 11 a.m. until 3 p.m. (a four hour shift), take a two hour break between 3 and 5 p.m., and then resume work from 5 p.m. to 10 p.m. (a five hour shift), you owe that employee for nine hours of regular work plus the one hour of minimum wage, since the time between 11 a.m. and 10 p.m. exceeds ten hours.

New York Pay Period Laws

Restaurants can pay their employees twice a month, bi-weekly, weekly, or monthly, but must make employees aware of the day they will be paid.

One caveat, though - a previously obscure New York labor law gained traction in 2019 when a court fined an employer for not paying employees weekly. New York labor laws require employers to pay manual workers weekly, defining ‘manual workers’ as those who spend over 25% of their time doing physical labor. Though this hasn’t spread widely in the restaurant industry, it’s worth knowing about.

On-Call Laws in New York

Don’t be so quick to schedule employees for on-call shifts—New York law mandates that these hours count towards employee pay.

Charging Your Restaurant Employees

Restaurateurs in New York cannot charge employees for “breakages, cash shortages, fines, losses to the business, [or] charges for check replacement.”

Additionally, you may not require employees to pay for or maintain required uniforms. However, you can require them to pay for and maintain clothes in a dress code. For example, you can save money on uniform costs by asking waiters to wear a white button-up shirt with a tie rather than a custom-made shirt and tie with your logo on them.

What you can require employees to pay for are credit card fees on tips. This should be a prorated portion of tips from an employee to compensate for credit card processing fees.

Restaurant Employee Break & Benefit Laws in New York

New York Meal and Rest Break Laws

Employers must give a lunch break of at least 30 minutes to employees who work six or more hours if the employee is scheduled to work at noon. The 30-minute break must be between 11:00 a.m. and 2:00 p.m. (which does not make it easy for managers to dismiss employees in bulk, since that’s when the lunch rush is).

An additional 20-minute meal break is required if the employee starts a shift before 11:00 a.m. and works past 7:00 p.m. This break must be offered between 5:00 p.m. and 7:00 p.m.—right in the middle of the dinner rush.

To circumvent being understaffed during these busy times without violating the law, consider these options:

  • Have a staff lunch right at the start/end of the early shift (from 11:00-11:30 or 1:30-2:00).
  • Send employees on rotating breaks towards the end or beginning of the shift to ensure you’re only short a few employees at a time.
  • Schedule employees for shifts shorter than six hours if the shift is placed over lunchtime to avoid violating this law.

Finally, restaurant employees who are on the schedule for six or more hours between 1:00 p.m. and 6:00 a.m (think your late-night bartenders and dinner shift employees) are allowed at least 45 minutes for their meal break. The only rule about timing for this law is that it should be “at a time midway between the beginning and end of such employment,” giving you a bit more flexibility to schedule breaks outside of peak hours.

Keep in mind, all of these meal breaks are unpaid.

Regarding rest breaks, New York has no law in place requiring restaurant managers to offer rest breaks to their employees. Still, to keep your staff productive and happy, you might want to offer them to your workers during lulls throughout the day.

New York Paid Family Leave offers up to 12 weeks off to employees who are new parents (to newborns, adopted children and foster children), employees caring for a family member with a serious health condition, and employees assisting a loved one if their family member is deployed abroad on active military duty at 67% of the employee’s average weekly wage, up to 67% of the state average weekly wage.

As an employer, you cannot discriminate against employees who go on leave. Examples of discrimination include revoking health care access during this time, terminating employees for going on leave, or not ensuring the employee works the same or comparable job upon return.

Employees are eligible to take paid leave:

  • After 26 weeks if they work 20 or more hours per week.
  • After 175 days worked at your restaurant if they work a regular work schedule of less than 20 hours.

The good news for you, the employer? New York Paid Family Leave comes at no cost to you. The program is funded by a small payroll deduction (0.373% of an employee’s wages each pay period). So while you must hold the spot for an employee for the duration of the leave, you won’t have to pay that employee’s wages for the hours not worked in your restaurant.

New York Vacation and Holiday Leave Laws

New York restaurants are not required to offer paid or unpaid vacation time. However, if you do, there are a few regulations to keep in mind:

  • If your employment contract with an employee specifies you will pay out accrued vacation time after their employment ends, or if the payment of accrued time is not specified, you must pay employees for earned vacation time.
  • Employers may disqualify an employee from collecting wages from accrued vacation time (i.e. violating harassment policy or not giving a two-week notice). Still, these criteria must be specified and employees must be given adequate notice of these terms.
  • Accrual of vacation time may be capped, but the accrual policy must be documented for employees.
  • Employers may require employees to use their vacation days or lose the benefit.

Additionally, employers do not have to provide paid vacation days during holidays. They can schedule employees to work on holidays at no additional hourly wage (unless the time worked qualifies as overtime).

New York Sick Leave Laws

Sick leave depends on the size of your restaurant’s team:

  • 100+ employees: 56 hours of paid sick leave per calendar year
  • 5-99 employees: 40 hours of paid sick leave per calendar year
  • 4 or less employees:
    • Net income greater than $1 million in the previous tax year: 40 hours of paid sick leave per calendar year
    • Net income equal to or less than $1 million in the previous tax year: 40 hours in unpaid sick leave per calendar year

Employees accrue at least one hour of leave for every thirty hours worked.

Reasons for taking sick leave can include mental or physical illness, injury, health condition, or the diagnosis, care, or treatment of such for themselves or a family member. Employees can also take safe leave when they or a family member need to take action as a victim of domestic violence.

Rest Day Laws

Restaurants in New York must provide at least 24 consecutive hours off of work each week, so keep this in mind when building your schedule, and make sure your staff knows this when offering to trade shifts.

Employment of Minors in New York

Keep these laws in mind if you employ minors in your restaurant. The state Department of Labor is cracking down on violations of child labor laws, like a Staten Island Wendy’s that they fined $105,000 in 2021.

14-15 Year-Olds

Those aged 14 or 15 may work:

When school is not in session (i.e., vacation)
  • No more than 40 hours a week
  • No more than six days a week
  • No more than eight hours a day
  • Between 7:00 am to 9:00 pm from June 21 to Labor Day
When school is in session
  • No more than 18 hours a week
  • No more than six days a week
  • No more than three hours on a school day and eight hours on a non-school day
  • Between 7:00 am to 7:00 pm

16-17 Year-Olds

Those aged 16 or 17 may work:

When school is not in session (i.e., vacation)
  • No more than 48 hours a week
  • No more than six days a week
  • No more than eight hours a day
  • Between 6:00 am to midnight
When school is in session
  • No more than 28 hours a week
  • No more than six days a week
  • No more than four hours on Monday, Tuesday, Wednesday, Thursday
  • No more than eight hours on Friday, Saturday, Sunday, and holidays
  • Between 6:00 am to 10:00 pm
  • Between 10:00 pm to midnight with written permission from parents or guardians and educational authorities
Not attending school (Requires a Full-Time Employment Certificate)
  • No more than 48 hours a week
  • No more than six days a week
  • No more than eight hours a day
  • Between 6:00 am to midnight

Lastly, make sure you report all injuries a minor sustains on the job.

New York City Fair Workweek Law

To wrap things up, New York City has a slew of regulations about fast food workers in its Fair Workweek Law. Here are the basics you’ll need to abide by:

  • Prioritizing Existing Workers: As shifts open up or become available, you must offer them to current or laid-off employees before hiring new employees. This law makes overtime costs a real consideration, since you legally need to prioritize workers already on your restaurant's payroll for these shifts.
  • Clopens”: Employees working a closing shift and a subsequent opening shift (with less than 11 hours off between shifts) must provide written consent and receive $100 premium pay. Naturally, the best move would be to–if possible–schedule different employees for closing and opening shifts to save money on premium charges and (arguably more importantly) ensure your employees are well-rested for each shift.
  • Predictive Scheduling: You must provide employees with a predictable working schedule of when they should regularly expect to work, in addition to a finalized work schedule two weeks in advance. Balancing requests for so many shifts can be difficult, so try using an auto-scheduler to assign shifts based on sales forecasting and past employee scheduling trends.
  • Guidelines for Firing, Layoffs, and Reducing Hours: Employees can only be fired, laid off, or scheduled less for specific reasons. These include illegal or dangerous behavior or economic reasons (for layoffs). An underperforming employee must receive retraining, warnings, and a chance to improve.
  • Fees for Schedule Changes: Any employer-mandated addition, swap, or reduction to shifts within two weeks is subject to provide premium pay (outlined in the image below) to the employee.

Employers do not have to pay this premium fee if:

  • The restaurant closes due to an emergency
  • The employee requests or initiates a shift swap
  • The shift change requires overtime pay

Premium Pay Rates for Last Minute Schedule Changes:

Amount of notice before the change is effective Additional work time or shifts Change to shifts but no change to total work time Reduced work time or shifts
Less than 14 days notice $10 per change $10 per change $20 per change
Less than seven days notice $15 per change $15 per change $45 per change
Less than 24 hours notice $15 per change $15 per change $75 per change

Following New York State Restaurant Labor Laws

The fact is, New York has a slew of labor laws, and failing to comply with even one of them can result in fines galore for your restaurant.

That’s where a restaurant scheduling and team management software can come in handy.

7shifts is built for New York restaurant labor law compliance, with features like overtime alerts, easy shift swaps, and electronic schedule publishing and labor exception reports. 7shifts can ease you of your scheduling-induced headaches so you can focus on keeping your guests and employees delighted. Features include:

  • Overtime Alerts: Managers will receive alerts of any overtime—during scheduling and when employees work a shift.
  • Scheduled break management: Schedule in custom and mandatory breaks to any shift. Notifications remind your team to take them.
  • Spread-of-Hours Alerts: Avoid that $100 premium fee on clopens and extra hour of minimum wage pay on split shifts. Get notified when employees are scheduled in one of these scenarios to schedule smarter.
  • Indicate Minors on the Schedule: Employees under the age of 18 will have indicators appear next to their name on the schedule page, shift creation modal, and shift pool requests.
  • Labor Exception Reports: Stay more compliant with local laws with easily-accessible, automated labor exception reports.

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7shifts Staff
7shifts Staff

7shifts team of writers and experts in the hospitality industry.