The Department of Labor has published a rule that New York restaurants can include credit card tips on a waiter’s next paycheck rather than be distributed on a daily basis. The rule also provides that restaurants may subtract from the tips of the waitstaff a pro-rated share of the fee charged by the credit card company. The full text of the rule, which is also published on the Department of Labor’s website, is as follows:
When tips are given by customers via credit card, the employer must pay the employee the amount due no later than the next regularly scheduled pay day. The employer may subtract from the employee’s tips the pro-rated share of the charge levied by the credit card company. An employer remitting tips to an employee must include a breakdown between the tips and the wages on the employee’s wage statement, which must meet all other requirements for wage statements. The position reflects a change in DOL policy as set forth in DOL opinion RO-08-0032 related to this issue. That opinion is hereby rescinded.
When customers pay tips in cash, employers may as a service to their employees, allow employees to leave cash tips earned over the course of a pay period with the employer. The employer must issue a tip payment for the total amount of those cash tips along with any wage payment for the same pay period. A request by an employee for the employer to provide this service must be voluntary, and the agreement cannot be a pre-condition of employment or a condition of continued employment. The employer must still keep a daily record of the tips earned by each employee provided this service, and have those records available for inspection by the employee and/or the Department. The wage statement provided with the tip payment must contain a breakdown of tips and wages, and meet all other requirements for wage statements.