Tip Credit

A restaurant must provide notice before paying waitstaff a tipped minimum wage.

Under the Fair Labor Standards Act (FLSA), a restaurant can take a “tip credit” towards its minimum wage obligation for tipped employees equal to the difference between the required cash wage (which must be at least $2.13 under the FLSA) and the federal minimum wage of $7.25 per hour.  It is important to note that certain states provide a higher minimum wage for servers, including New York, where the minimum wage rate and tip credit amounts depend on where the restaurant is located:

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New York City, Long Island and Westchester County

--- Full. Min. Wage Rate (as of 1/1/2025)

• $16.50 per hour
• Up to $5.50, with $11.00 per hour in house pay for Food Service Workers
• Up to $2.75, with $13.75 per hour in house pay ($3.55 applicable threshold) for Service Workers

Rest of New York State

--- Full. Min. Wage Rate (as of 1/1/2025)

• $15.50 per hour
• Up to $5.15, with $10.35
• Up to $4.75 with $9.45 per hour in house pay (Tip Credit)

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In order for a restaurant to take a tip credit, it must provide notice of the following information to a tipped employee:
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1. the amount of cash wage the employer is paying a tipped employee, which in New York ranges from $15.50 to $16.50;
2. the additional amount claimed by the employer as a tip credit, which in New York depends on location and ranges from $2.60 to $5.50;
3. the tip credit claimed by the employer cannot exceed the amount of tips actually received by the tipped employee;
4. all tips received by the tipped employee are to be retained by the employee except for a valid tip pooling arrangement limited to employees who customarily and regularly receive tips; and
5. the tip credit will not apply to any tipped employee unless the employee has been informed of all of the above tip credit provisions.

In New York, restaurants are required to provide this information in writing at the time of hire, both in English and in the employee's primary language.