Restaurant Workers

The restaurant industry is fast-paced and highly competitive. Restaurant employees work hard for every dollar they earn, whether through hourly wages or tips. Unfortunately, due to the nature of their work, restaurant employees may all too often find that their employers treat them unfairly. Because of the unique nature of the restaurant industry, rules regarding compensation earned by restaurant workers can be more complex, as employees often receive tips in addition to their regular wages.

The Fair Labor Standards Act

The Fair Labor Standards Act (FLSA) protects the rights of both tipped and non-tipped restaurant workers. This federal statute contains strict guidelines and requirements regarding employees – but despite those strict guidelines, employers too often violate the rights of their employees.

Most restaurant servers are paid below the minimum wage, with the expectation that they will earn additional pay in the form of tips each day. While this is allowable under the FLSA, it is only authorized if an employee ultimately ends up making at least the minimum wage when tips are included. Unfortunately, many employers fail to follow the terms of the FLSA and other state or local laws in their particular state.

Common Employer Violations

Some of the most common ways that restaurants attempt to avoid paying their employees the full amount to which the law entitles them include:

  • Forced tip sharing: It is against the law to force employees to share their tips with managers, supervisors, or with other employees who are not entitled to tip pooling.
  • Paying less than minimum wage: Although the federal minimum wage is $7.25, some states and cities have a higher minimum wage. Whatever the minimum wage in a particular location, a restaurant has a legal obligation to make up the difference if tips combined with hourly pay do not add up to the minimum wage amount.
  • Not counting time for prep or cleanup work: An employer must have an employee on the clock for any time spent performing work for the restaurant, including prep and cleanup.
  • Failing to pay earned overtime: As is the case in all industries, those who work overtime deserve to be lawfully compensated. Employees who work overtime are entitled to time and a half compensation, and withholding earned overtime is unlawful.

There are, of course, numerous other instances in which restaurant employees might need legal counsel. At Outten & Golden, we have extensive experience in workplace discrimination, harassment and retaliation claims, wrongful termination claims, and many other causes of action relating to employee rights.


At Outten & Golden LLP, we are committed to protecting and defending the rights of restaurant workers. Our attorneys are proud to have been among the first legal advocates for tipped employees. We have successfully represented restaurant workers in some of the earliest cases against high-profile restaurants for violations such as:

  • Forced, unlawful tip pooling;
  • Taking tips that were billed directly to the customer;
  • Forcing workers to share tips with ineligible employees; and
  • Various other causes of action vital to protecting restaurant industry workers.*

If you are an employee working in the restaurant industry, and you need legal guidance regarding an employment issue, we’re here to help. Please contact us online or call our offices in New York, San Francisco, or Washington, DC to discuss your circumstances with a knowledgeable and experienced Outten & Golden attorney.

(*Prior results do not guarantee a similar outcome.)