Regardless of your job or immigration status, that law requires that you are paid at least the minimum wage. There are very few exceptions to minimum wage laws in New York. Your employer cannot make a lump sum payment to you in cash, which is less than the minimum wage for each hour that you worked. Minimum wage laws are in place to ensure that workers are paid a basic wage, meaning you must be paid for all the hours you work and must not be paid less than the minimum wage per hour. So, if your employer collects some or all of the tips you are given, you may have a claim against your employer, both for the regular minimum wage for non-tipped employee, and to “disgorge” (or get back) money taken out of your tips by the employer. It is also important to remember that your percentage of any tips cannot reduce your wages below the minimum wage. This can make a tremendous difference where you have worked in the same restaurant for several years, or when there is also an overtime violation. This can also result in a loss of the tip credit, and liability to all the employees for a regular minimum wage violation. There may also be a tip credit violation if any part of the tip pool goes to the management in any way. Similarly, if any part of the tip pool goes to an employee who is not involved in serving the customers, the employer can lose the “tip credit” and owe everyone in the tip pool the regular minimum wage instead of the tipped minimum wage. This can make a big difference in what you are entitled to. If any employee who is also a supervisor shares in the tip pool or takes any part of the tips, the employer loses the “tip credit,” which means the employer owes each employee the regular minimum wage, instead of the “tipped” minimum wage. No part of any tips or gratuities customers given directly to employees, or intended for the benefit of the employees, can go to the employer. For waiters, busboys and other service employees, tips form a big part of their wages. Tipping is an acceptable practice in most service-oriented employment at restaurants, hotels and other establishments, where employees provide direct service to their customers.
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