Restaurant & Hospitality Legal Services
Restaurant and Hospitality Industry
The restaurant industry presents unique labor and employment law challenges. MCB helps its restaurant clients to overcome these challenges and prosper. We represent restaurants with respect to virtually all areas of labor and employment law including wage and hour, audits and litigation; employment discrimination complaints, charges and lawsuits; union organizing; collective bargaining; and proceedings before the National Labor Relations Board, the New York State and New Jersey Departments of Labor and the United States Department of Labor.
Wage and Hour Counseling and Litigation
In recent years, restaurants have become inviting targets for class and "collective action" lawsuits. This increasing wage and hour litigation arises, in part, because successful plaintiffs are entitled to recovery of their attorneys' fees and liquidated (double) damages. In New York, plaintiffs’ attorneys are further encouraged to litigate because employees can recover back wages for up to six years.
Considering these factors, even small restaurants are sometimes subject to suit. In many cases, each individual waiter, busser or runner may have modest damages, but when the lawsuit is brought as a "collective action" or "class action" encompassing many workers over a multi-year limitations period, the potential damages can increase tremendously.
In our experience, restaurants are often vulnerable if they fail to maintain adequate records of hours worked, and wages and tips received and distributed. Likewise, restaurants may, in some instances, fail to properly pay tips, apply the tip credit, pay overtime and/or comply with New York's "spread of hours" law and the Wage Theft Prevention Act. In addition to these difficulties, ongoing changes in the federal and state wage and hour laws and regulations add to the compliance challenges for restaurant employers.
MCB meets these challenges by assisting restaurants with legal compliance and defending litigation related to:
With increasing frequency, restaurant employers are being sued for purported tip violations. We counsel restaurant employers concerning tip eligibility, tip credits and permissible tip pools. Our attorneys have litigated some of the leading cases related to tipping and other wage and hour issues.
This is another potential minefield. Employers must properly classify whether an employee is "exempt" or "non-exempt" from the overtime laws and failure to do so can have costly consequences. These cases often arise for "borderline" positions, such as assistant managers, shift managers or hosts. Likewise, restaurant employers sometimes run afoul of the overtime requirements by paying "shift pay," i.e., fixed pay regardless of hours worked. Where necessary, we work with restaurant employers to correct their overtime pay practices.
New York's Spread of Hours
Under New York law, restaurant employers are sometimes required to pay an extra one hour of pay at the minimum wage rate when the employee works more than a single shift. Again, we counsel restaurants respecting compliance with New York's "spread of hours" requirements.
Wage Theft Prevention Act (WTPA)
Under this relatively new law, New York employers must provide each employee with basic information about their pay, pay frequency, overtime rate, etc. We are handling increasing litigation relating to employer's failures to comply with the WTPA's requirements.
There are stringent restrictions on what deductions employers may permissibly make from an employee's pay. We advise restaurant employers about the legality of deductions for credit card administration fees, uniforms, overpayments, etc.
MCB handles the full range of employment discrimination issues that may arise at restaurants including issues related to race, sex, national origin, age, religion and other forms of discrimination. The Firm's attorneys regularly defend restaurant and other clients against employment discrimination claims in multiple forums, including the Equal Employment Opportunities Commission, the New York State Division of Human Rights, the New York City Commission on Human Rights, the New Jersey Division on Civil Rights and in the state and federal courts.
Labor Relations and Union Organizing
We also provide advice and counsel related to union organizing, contract negotiations and alleged unfair labor practices. We know that the best approach to avoiding labor problems that can disrupt business is to identify and resolve issues before the involvement of unions and government agencies.
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For further information, please contact:
Valerie K. Ferrier, head of the Firm’s Labor & Employment Practice Group at