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Restaurant workers and the 80/20 Rule

New York employees in tipped occupations such as waiting on tables should be aware of the 80/20 rule, which requires minimum wage payment for certain activities by tipped workers. Under the Fair Labor Standards Act, if an employee performs two jobs, one that is tipped and one that isn't, the employer is in many cases required to pay minimum wage for the non-tipped work.

Also referred to as the side work rule, the 80/20 rule comes from the Field Operations Handbook published by the Department of Labor. Generally speaking, a waitress whose workday includes making coffee, cleaning and setting tables, toasting bread and sometimes washing glasses or dishes will not be considered to have a dual job requiring payment of minimum wage under the FLSA. Typically, the employee must be paid minimum wage for side work that does not qualify as incidental to the tipped work.

Non-incidental work might include taking out trash, dusting the restaurant or sweeping the parking lot. This sort of work generally entitles a tipped employee to collect minimum wage for the time spent doing it. If the time spent doing side work accounts for more than 20 percent of a tipped employee's time, the employee may be entitled to minimum wage for those hours even if the side work was tip-related.

In a case where an employee has not been paid for time for which he or she should have been paid minimum wage, an attorney with experience in wage and hour conflicts may be able to help. An attorney may be able to negotiate an amicable solution whereby the employee is compensated properly. In a case where the employer is not cooperative, an attorney might file a complaint with the Department of Labor.

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