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Restaurant Labor Laws Cheat Sheet: New York State

Restaurant Labor Laws Cheat Sheet: New York State
AJ Beltis

By AJ Beltis

Date of Publishing: February 11, 2020

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 NYC state resource.

As if serving delicious meals, creating incredible guest experiences, and gaining a sustainable share of the market wasn’t difficult 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. In 2018, for example, the multiple-location Pret a Manger was forced to pay $875,000 in unpaid wages and overtime pay.

The sheer number of New York restaurant laws can threaten to overwhelm, but given the state’s population of nearly 20 million and its 50,000 restaurants, these laws provide a level of blanket protection for New York’s restaurant-goers and employees and must be adhered to.

So, feeling like you need a quick review of your state’s regulations? Read on for some of the need-to-know New York restaurant labor laws in this cheat sheet.

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 if any have been updated since this post’s publication.

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 worked in, and what date you’re reading this. Additionally, the amount of employees who work for your restaurant can dictate your minimum wage, and 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.

As of this post’s publication (September 2019), the non-fast food restaurant hourly minimum wage is as follows:

  • $15 for New York City restaurants employing 11 of more workers.
  • $13.50 for New York City restaurants employing 10 or fewer workers.
  • $12 for the remainder of downstate New York (classified as Nassau, Suffolk, and Westchester Counties).
  • $11.10 for the remainder of New York State.

By the end of 2019, the following hourly minimum wages will be in place for non-fast food restaurants:

  • $15 for restaurants employing 10 or fewer workers.
  • $13 for the rest of downstate New York.
  • $11.80 for the rest of New York State.

On top of this, fast food restaurants have a separate minimum wage law to abide by. 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 shops; and 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.”

If your restaurant meets these criteria, here are the hourly minimum wages you must provide employees:

  • $15 in New York City.
  • $12.75 for the rest of New York State.
  • $13.75 for the rest of New York State, effective 12/31/2019.

Restaurants in New York are also required to display the state Minimum Wage Poster– in addition to the restaurant-specific Deductions From Wages Poster and Gratuities Poster–in their restaurant. You can access these 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 (11 or More Employees) $10 $5
New York City (10 or Fewer Employees) $9 $4.50
New York City (10 or Fewer Employees, Effective 12/31/19) $10 $5
Nassau, Suffolk, and Westchester Counties $8 $4
Nassau, Suffolk, and Westchester Counties (Effective 12/31/19) $8.65 $4.35
Remainder of New York State $7.50 $3.60
Remainder of New York State (Effective 12/31/19) $7.85 $3.95

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.

New York Restaurant Overtime Law

Overtime pay in New York is 1.5x the employee’s normal hourly wage and 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 be paid for the day.

This means 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.

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. 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 scheduled to work 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.

On the topic of 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 ten 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 50% of the employee’s average weekly wage, up to 50% of the state average weekly wage.

As an employer, you cannot discriminate against employees who go one 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 (0.153% 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 actually worked in your restaurant.

New York Vacation and Holiday Leave Laws

New York restaurants are not required to offer either 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 his or her 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), but 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 else lose the benefit.

Additionally, employers do not have to provide paid vacation days during holidays and 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 laws differ between New York City and State.

New York State does not require restaurants to offer employees paid or unpaid sick time, though businesses are still bound by the Family and Medical Leave Act, which typically applies for more serious health issues.

Let’s face it, though – you don’t want someone sick working at your restaurant! If it’s within your budget, offering paid time off to incentivize sick employees to stay home without fear of losing wages is probably the best bet, even if not legally required.

In New York City, however, employers must provide employees with up to 40 hours of sick time per year, accrued at a rate of one hour per every 30 hours worked.

Rest Day Laws

Restaurants in New York must provide at least twenty four 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.

14-15 Year-Olds

Those aged 14 or 15 may work:

  • No more than 40 hours a week when school is not in session (i.e. school vacation weeks and summer vacation).
  • No more than 18 hours a week when school is in session.
  • No more than 6 days a week when school is in session.
  • No more than 8 hours on a non-school day and 3 hours on a school day.
  • Between the hours of 7:00 a.m. and 7:00 p.m. from Labor Day to June 20 and from 7:00 a.m. and 9:00 p.m. from June 21 until Labor day.
  • In other words, leave the dinner shifts to the older kids or adults!

16-17 Year-Olds

Those aged 16 or 17 may work:

  • No more than 48 hours a week when school is not in session (i.e. school vacation weeks and summer vacation).
  • No more than 8 hours a day when school is not in session.
  • Full time throughout the year if not in school.
  • Note: this requires a Full-Time Employment Certificate.

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 its own slew of regulations pertaining to 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 existing employees before hiring new employees to fill them. This makes overtime costs even more of a reality, since you legally need to prioritize workers already on your payroll for these shifts.

  • Clopens”: Any employee 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.

  • Good Faith Scheduling Upon Hiring: New employees should be given a “good faith estimate” on their first work schedules on or before they begin working. You can save yourself time for each new hire by presenting interview candidates with the shifts you need filled, rather than building a schedule after the hiring is done.

  • 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.

  • Fees for Schedule Changes: Any employer-mandated addition, swap, or reduction to shifts within the two-week time frame 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 (which is super easy using 7shifts restaurant scheduling software.
  • 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 7 days' notice $15 per change $15 per change $45 per change
Less than 7 hours' notice $15 per change $15 per change $75 per change

Following New York State Restaurant Labor Laws

Apologies if you were expecting a quicker read – but 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 staff 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 weekly scheduling-induced headaches so you can focus on keeping your guests and employees delighted. Features include:

  • Electronic Schedule Publishing: Share your schedule with all employees two weeks in advance via SMS text, push notification, or email.
  • Overtime Alerts: Managers will receive alerts of any overtime–during scheduling and when employees are working a shift.
  • Shift Swaps: Put the power in your employees’ hands. Allow employees to take or swap shifts (with your approval, of course!).
  • 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.
  • Labor Exception Reports: Stay more compliant with local laws with easily-accessible, automated labor exception reports.

Ready for a more compliant restaurant? Get a demo of 7shifts restaurant scheduling software.

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AJ Beltis
AJ Beltis

AJ Beltis is a freelance writer with almost a decade of experience in the restaurant industry. He currently works as a content manager at HubSpot, and previously as a blogger at Toast.