Restaurants often require their servers and bartenders to perform certain tasks before the restaurant opens to the public. These tasks often include refilling salt and pepper shakers, refilling ketchup bottles, rolling silverware, folding napkins, sweeping or vacuuming under tables in the dining area, and setting tables. At some restaurants these tasks can also include preparing food, including salads, or cleaning the kitchen or bar area. Employers commonly refer to these tasks as “side work” which is incidental to their primary duty of serving the customer. To be sure, this side work usually involves no customer interaction at all. Servers and bartenders are also required to perform this side work when the restaurant closes at the end of the night.
In December 2021 the Department of Labor entered a mandate requiring restaurants to pay their servers and bartenders the full minimum wage (no tip credit can be taken from the employee’s pay) if the servers or bartenders spend more than 30 continuous minutes performing any of the side work mentioned above.
This type of situation can happen in a number of different ways. Many restaurants require servers and bartenders to report to work 45 minutes to an hour before the restaurant actually opens to the public so that the servers and bartenders will prepare the restaurant to open. In this type of a situation, the restaurant must pay the servers and bartenders the full minimum wage when they are performing this work. The restaurant must keep track of the amount of side work being performed and cannot reduce employee wages by taking a tip credit for any of the work performed during this specific period of time.
There is another law that requires servers and bartenders to be paid the full minimum wage for time spent on side work if the time doing the side work amounts to more than 20% of their overall workweek. The 20% of their workweek doing the side work does not have to be done in 30 consecutive minutes, and the restaurant can be open during that time. This is known as the 80/20 rule.
How To Know How Much The Restaurant Should Pay?
For example, if a restaurant opens at 11:00 a.m. and a server is required to report to the restaurant at 10:15 a.m. to start rolling silverware, folding napkins, cleaning the bar or dining area, and/or preparing work stations, then the restaurant must pay the server the full federal minimum wage of $7.25 per hour or the full applicable state minimum wage, whichever is higher.
This situation also occurs when the restaurant closes at the end of an evening. When restaurants close, a couple of servers and bartenders are often assigned closing duties and are required to spend a significant amount of time cleaning certain dining and bar areas. If the restaurant is closed to the public this means that no more customers are entering, and therefore, the servers and bartenders are not engaged in customer interaction. The restaurant must pay the servers and bartenders full minimum wage if they spend more than 30 continuous minutes performing side work when a restaurant closes.
This type of violation can occur in the following scenario. If a restaurant closes at 11:00 p.m. and a server is assigned closing duties, the restaurant must pay the server full minimum wage if more than 30 continuous minutes are spent performing side work. If the server starts performing side work at 11:15 p.m. and does not finish until 12:00 a.m. the server must be paid the full minimum wage for 45 minutes of work.
If you are facing a situation that falls into performing more than 30 minutes of continuous side work at a restaurant, or are performing side work for more than 20% of your workweek, contact our employment law attorneys by phone at (800) 483-0998 or online and request a confidential case evaluation.
Wages That Must Be Paid in Florida, Illinois, and New York to Servers and Bartenders Who Perform More Than 30 Minutes of Continuous Work
Servers and bartenders in Florida who are required to perform more than 30 continuous minutes of side work after September 30, 2022, must be paid at the rate of $11.00 per hour for this work.
Servers and bartenders in Illinois who are required to perform more than 30 continuous minutes of side work in 2022, must be paid at the rate of $12.00 per hour for this work.
Servers and bartenders in New York who are required to perform more than 30 continuous minutes of side work in 2022, must be paid at the rate of $14.20 per hour for this work.
If you are facing a situation that falls into performing more than 30 minutes of continuous side work at a restaurant, or are performing side work for more than 20% of your workweek, contact our employment law attorneys by phone at (800) 483-0998 or online and request a confidential case evaluation.
