Law Offices of Mitchell Schley, LLC

New York and New Jersey Labor and Employment Lawyer

197 Route 18 South
South Tower – Suite 3000
East Brunswick, NJ 08816
Phone: (732) 325-0318
Fax: (732) 325-0317

245 Park Avenue, 39th Floor,
New York, NY 10167
Phone: (212) 672-1848
Fax: (212) 372-8798

Contact us for a free telephone consultation at

(732) 325-0318

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About Mitchell Schley, ESQ


Many immigrant workers work in restaurants as servers, cooks, bartenders, busboys, or cleaners. However, at often times, workers in the restaurant industry are taken advantage of by being improperly paid for their work.

Minimum wage laws protect every employee, even if they receive tips as part of their wages. In New Jersey, employees, including those that work in restaurants, are entitled to the full minimum wage of $8.38 per hour. However, employers are allowed to pay less than minimum wage to tipped restaurant workers but only if those workers earn enough tips to make up the difference. This is called a “tip credit.” For example, if you are a waiter who works 40 hours per week and after earning tips, you only make $5.00 per hour, under New Jersey law, your employer is required to pay the difference of $3.38 per hour, that is, you are owed an additional $135.20 for the 40 hours you worked. Under federal law, your employer is required to pay you $2.13 per hour plus tips, but if this does not equal minimum wage, then your employer is required to pay you the difference also. Many employees in restaurants are denied this basic minimum wage.

As a restaurant worker, you are also entitled to overtime pay if you work over 40 hours per week. For every hour you work over 40 hours in a week, your employer is required to pay you 1.5 times your regular hourly rate. For example, if you make $10.00 per hour and work 50 hours in a week, you are owed overtime pay for 10 hours that week. The overtime rate is calculated by multiplying your regular hourly rate of pay ($10.00 per hour) by 1.5, which equals $15.00 per hour. $15.00 per hour multiplied by the overtime hours you worked (10 hours), is $150.00. As such, your employer will owe you an extra $150.00 for that workweek as overtime pay. Some employers give restaurant workers a fixed salary no matter how many hours they work in week, but this can lead to violations of minimum wage and overtime laws.

Also, some employers require waiters and other restaurant employees to perform additional work such as taking out garbage, cleaning floors, tables, chairs, bars, windows, glassware, etc. without pay. For instance, some employers tell waiters or bartenders to “clock out” or “punch out” after their shift ends but still make them perform this type of cleaning work. This is illegal under New Jersey and federal law. Your employer cannot require you to perform such work without being compensated at least the minimum wage.

Lastly, a tipped employee is entitled to retain the tips he or she has earned. It is illegal for employers to take tips from an employee. However, New Jersey allows “tip pooling.” Employees who are required to share in a tip pool chip in a reasonable portion of their tips in the tip pool, which is then distributed equally among other tipped employees. The tip pool may not include supervisors, managers or cooks. Only employees that regularly receive tips are permitted to share in the tip pool.

It is a good idea to speak to a labor lawyer if you have concerns about any of these issues above.

Mitchell Schley is an attorney who practices labor law at the Law Offices of Mitchell Schley, LLC, in East Brunswick and New York City. Feel free to contact him if you have a question about this article or any other labor law issue. He can be reached at (732) 325-0318 or at

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Law Offices of Mitchell Schley, LLC
197 Route 18 South, South Tower – Suite 3000, East Brunswick, NJ 08816 • Phone: (732) 325-0318 • Fax: (732) 325-0317
245 Park Avenue, 39th Floor, New York, NY 10167 • Phone: (212) 672-1848 • Fax: (212) 372-8798
Contact us today »