Tip Withholding Attorney in New York, NY

In the lively streets of New York, the service industry is home to some of our most unsung heroes. You work hard to earn your living. The tips you earn are more than just extra cash — they're what makes ends meet. So if you suspect your employer of tip theft, it's important to know your rights and know what to do next. Our tip-withholding attorney is here to help you receive the compensation you rightfully deserve.

At J Goldman Law, we dedicate ourselves to serving clients throughout New York County, Bronx, Queens, and Brooklyn. We're also licensed to practice in New Jersey. Protect your rights as a tipped employee; contact our lawyer today.

Tip Credits: What You Need to Know

Tip credits can sometimes be a complex concept to grasp. Essentially, New York law allows employers to count a portion of their employees' tips towards meeting their minimum wage obligations. While this doesn't mean your employer is taking your tips, it does mean they can consider some of these tips as if they had paid them directly to you. It's crucial to understand how this impacts your overall earnings and whether your employer is following the law correctly.

Tip Theft and Withholding

If you find that your employer is withholding your tips or not distributing them correctly, it's important to understand that this is not legal under New York state employment laws. Tips are considered the property of the employee, not the employer. Any form of withholding or misappropriation by the employer can be seen as wage theft. If you're facing such a situation, here are some steps you should take:

1. Document the instances: Keep a record of all instances where you suspect your tips have been withheld. Include dates, amounts, and any relevant details.

2. Consult with your co-workers: Speak with your colleagues to see if they're experiencing the same issues. There's strength in numbers, and if multiple employees have had their tips withheld, it could strengthen your case.

3. Seek legal advice: Reach out to a legal professional who understands New York labor laws. They can guide you on the best course of action and help you understand your rights.

4. File a complaint: If necessary, you can file a complaint with the New York Department of Labor. They can investigate the issue and, if your employer is found guilty of wage theft, enforce penalties.

The Complexity of Dual Jobs

In the service industry, it's not uncommon for employees to juggle multiple roles within their job. You may spend part of your shift performing non-tipped work, such as restocking supplies or cleaning, in addition to your tipped duties.

A change to federal law in 2018 means that your employer can take a tip credit for the time you spend on these non-tipped tasks, provided they're performed around the same time as your tipped duties. However, they cannot take a tip credit for unrelated tasks or tasks not performed concurrently with tipped duties.

Tip Pooling Practices

In New York, employers can require a "tip pooling" or "tipping out" system. This means all employees contribute a portion of their tips, which are then divided among the team. While this practice is allowed, it's important to know that employers cannot take more from the tip pool than is reasonable or customary. Furthermore, all the money must be distributed to the employees - none can be kept by the employer.

Defining a Tip

Determining what constitutes a tip can sometimes be tricky. If a customer pays in cash and leaves an amount above the charge for services, that extra money is considered a tip. However, if your employer imposes a mandatory service charge, or the customer pays by credit card, the rules may change. Understanding these nuances can help ensure you're receiving all the tips you've earned.

Mandatory Service Charges

Some establishments add a "mandatory service charge" to bills for large parties or catered events. While this might seem like a tip, it's not considered one under federal law or in most states. Instead, it's seen as part of the contract between the customer and the establishment. In New York, the rules are slightly different, and any charge in addition to charges for food and beverages is presumed to be a gratuity, unless otherwise stated by the employer.

Overtime and Tipped Employees

If you're a tipped employee who has worked over 40 hours in a week, you're entitled to overtime pay. The rate of pay is calculated using your regular pay rate, including tips. This means your total earnings for the workweek are divided by the total hours worked, with the overtime rate being one and a half times this figure.

Credit Card Fees and Tips

In New York, employers are allowed to deduct the proportionate amount of the credit card processing fee from an employee's tips. This is important to consider when you receive tips via credit card payments.