An employer may pay service personnel, like waitstaff or bartenders, an hourly wage below the minimum wage. The difference between the minimum wages for service personnel and the general public is called a "tip credit". The employer may take the credit (and thus pay less than the minimum wage) for each hour service personnel are engaged in service work so long as the service personnel make up the difference through their tips. Where a service employee does not earn enough from tips, the employer must pay the service employee enough money so that the service employee would have earned at least the minimum wage for all hours worked. However, under New York law, an employer may not take the tip credit at all unless they have informed their employee, in writing, that the employer intends to take the credit and tells them how the tip credit works. This written notice must then be signed by the employee.
As such, if you worked in a tipped job but do not remember receiving any notices regarding the tip credit, you may have a claim to recover the money necessary for you to have earned at least the minimum wage for each hour your worked.
Further, employers may also require that tips be pooled among all of the service personnel who worked during the shift. However, an employer may not take a tip credit where non-service personnel (e.g. cooks, members of management, etc.) are also included in the tip pool.
As such, if you worked in a tipped job and remember that management, or people who did not regularly interact with customers, were part of your tip pool, you may have a claim to recover the money necessary for you to have earned at least the minimum wage for each hour your worked.
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