Current through Register Vol. 46, No. 12, March 20, 2024
(a) The following definition of terms shall
apply to this section:
(1) The term
restaurant means any eating or drinking place where food or beverages for human
consumption on the premises are offered, including places whose patrons, in
whole or in part, consist of members of any club, association or similar
organization, but excluding places where patrons pay a fixed amount for meals
over any given period of time, not dependent upon the number of meals actually
taken.
(2) The term service
employee means any employee whose duties relate to the serving of food or
beverages, or both, in a restaurant, or to the performance of duties incidental
thereto.
(b) The value
of gratuities or tips received by a service employee is hereby determined to be
as follows:
(1) Such value, except as
provided in subdivision (c) of this section, shall be:
(i) equal to the amount certified by each
employee to his employer in a signed statement as received in the form of
gratuities or tips, which statement shall be retained by the employer and
submitted to the Department of Labor upon request; or
(ii) if such statement has not been submitted
by an employee, equal to seven and one- half per centum of the amount charged
for food and beverages served by all such employees, except that such value
shall be five per centum of such amount in regard to food and beverages served
at counters and in drug stores. The amount charged for food and beverages
served by all such employees shall be established on the basis of an allocation
to them of a reasonably calculated proportion of the total charges for food and
beverages served by all service employees. Such value shall be established for
each such employee by allocating to him a reasonably calculated proportion of
such value as established for all such employees.
(2) If an employer adds to each patron's bill
a definite service charge for the benefit of his employees, such value shall be
equal to the total amount of such service charge. This value shall be in
addition to a value if any, established under paragraph (1) of this
subdivision.
(3) In regard to
service employees serving catered or banquet meals, such value shall be 100
percent of their cash wages, notwithstanding any other provision of this
subdivision, except that no gratuities or tips shall be deemed received if no
tipping by collection or otherwise is permitted and the employer submits a
sworn statement to this effect to the Department of Labor.
(c) No gratuities or tips shall be deemed
received for the purposes of paragraph (1) of subdivision (b) of this section
if:
(1) acceptance of tips or gratuities is
prohibited by the employer, and
(2)
patrons are apprised by conspicuously displayed announcements or otherwise in
writing, at or before the time bills for food and beverages served are rendered
to them that acceptance of tips or gratuities by service employees is
prohibited, and
(3) the employer
adopts reasonable means to insure that tips or gratuities are not received by
his employees, and
(4) the employer
submits to the Department of Labor a sworn statement setting forth that his
employees are not allowed to accept tips or gratuities and describing the
methods adopted by him in order to obtain compliance with this prohibition by
patrons and employees.
(d) Employers shall give notice to each of
their service employees of the privilege to certify the amount of gratuities or
tips received by him in a signed statement as provided in subparagraph (i) of
paragraph (1) of subdivision (b) of this section. Such notice shall include
information on the percentage of charges for food and beverages and on the
method of calculation which will be used in reporting the value of tips or
gratuities in the event that such statements are not submitted.