New York Employment Attorney Blog
The COVID-19 pandemic has caused economic turmoil all over the country and the world. It has hurt restaurants more than many other kinds of businesses. The impact goes beyond the revenues of the restaurants themselves. Even without a pandemic, New York City sexual harassment lawyers see a substantial number of claims from workers in restaurants who rely on tips for much of their income. The problem seems only to have gotten worse when restaurants have been open this year. A report issued in early December by One Fair Wage (OFW), an organization that advocates for reform of wage laws affecting tipped employees, found substantial decreases in tips received by servers during the pandemic, along with an increase in incidents of sexual harassment. These two issues are closely related. Tipped workers’ reliance on tip income makes them particularly vulnerable to sexual harassment by supervisors, co-workers, and customers.
Laws like the New York City Human Rights Law, the New York State Human Rights Law, and Title VII of the Civil Rights Act of 1964 view sexual harassment as a type of unlawful discrimination on the basis of sex. Sexual harassment can occur in two general forms, both of which are unfortunately common in the restaurant industry. Quid pro quo sexual harassment takes place when a supervisor, manager, or another person with authority over an employee makes submission to sexual demands of some sort a condition of their employment. The other type involves pervasive or severe conduct of a sexual nature that is unwelcome and which a reasonable person would find to create a hostile work environment.
Under federal law and many state laws, including New York, employers are not obligated to pay tipped workers as much in cash wages as other employees. Instead, they must pay a lower minimum cash wage, with a “tip credit” for the difference between that amount and the regular minimum wage. Servers in New York City have a higher minimum wage than servers in the rest of the state, and state law sets a higher minimum wage than federal law.
The overall minimum wage in New York City, as of the beginning of 2020, is $15 per hour. For tipped employees in foodservice, the cash minimum wage is $10 per hour, and the tip credit is $5. If a tipped employee’s total income is equal to or greater than minimum wage, the employer is only obligated to pay $10 per hour in New York City. Otherwise, they must pay the difference to bring the employee up to minimum wage. The minimum wage in the rest of the state is gradually increasing until it reaches $15.
The OFW report demonstrates how reliance on tip income can make workers more vulnerable to sexual harassment, particularly when a pandemic has already made the availability and stability of such jobs tenuous. Workers fear speaking out about harassment by managers out of fear of losing their jobs. They fear speaking out about harassment by customers for fear of losing tip income. The report’s title comes from one worker’s account of harassment: “Take off your mask so I know how much to tip you.”
The employment lawyers at Phillips & Associates advocate for the rights of workers in New York City, representing them in claims for sexual harassment and other unlawful acts under city, state, and federal law. Please contact us online or at (212) 248-7431 today to schedule a free and confidential consultation to see how we can help you.