Help Wanted: Service employees and minimum wage
Carrie Mason-DraffenCarrie Mason-Draffen
Mason-Draffen, a business reporter, writes a column about workplace issues.
DEAR CARRIE: My son delivers pizzas using his own car and gas. The customer pays a $1 delivery charge, which is added to the bill and given to the employer. My son makes so little that I am wondering if he shouldn't get the delivery fee to help pay for gas and wear-and-tear on his car. It's as if the place gets an extra $1 for his troubles.
He said the boss' reasoning was that the $1 delivery fee goes to pay for the boxes. Meanwhile, my son makes less than minimum wage because of his expenses. The tips help but aren't enough to defray his costs. Is it legal for him to earn less than minimum wage? -- Bigger Slice?
DEAR BIGGER: Your son has to earn at least minimum wage, which is $7.25 an hour, and his delivery expenses can't legally take his pay below that, said Troy L. Kessler, a partner at Shulman Kessler in Melville. How that minimum wage breaks down depends on his tips.
As a delivery worker for a restaurant, your son is considered a "service employee" under the New York State Hospitality Wage Order, Kessler said. The minimum wage for a service employee is $5.65 per hour as long as the employee is receiving the equivalent of at least $1.60 per hour in tips in a workweek.
If he receives less than $1.60 per hour in tips, his employer must make up the difference to bring his pay up to $7.25 an hour.
Regarding the car expenses for gas and maintenance, regulations consider a delivery person's car a "tool of the trade," Kessler said.
Therefore, he said, the rules regarding cars -- or other modes of transportation -- are the same as the rules for uniforms: Employers have to make sure employees' cost of maintaining them doesn't take their weekly wages below $7.25 an hour.
"Employers can require employees to bear the cost of maintaining tools of the trade so long as those costs, when deducted from the employees' weekly wages, do not bring their wages below the lawful minimum wage," Kessler said.
So when your son's pay falls below the minimum wage after his delivery expenses are factored in, the boss must pay him more to bring him up to the minimum.
He should call the state Labor Department for more information at 516-794-8195.
DEAR CARRIE: My daughter works as a cashier in a supermarket. Because of a problem with register shortages, the managers have told everyone that when future shortages occur, each person on the shift will be responsible for making them up. Is this legal? -- Illegal Payback?
DEAR ILLEGAL: It would be blatantly illegal, and I am surprised the managers don't know that.
And the employer can't legally demand a separate payment, either. Here is what the state regulations say:
"An employer may not deduct the cost of breakage or spoiled materials from your wages, or charge you for being late. The law does not allow the employer to require payback for shortages separately."
That said, the company could fire at-will employees for shortages. Those employees aren't covered by a union contract or other employment agreement and can be fired at any time for any reason. Still, companies cannot legally dock employees' pay to cover losses.
For more on the state Hospitality Wage Order and minimum wage for service employees go to http://bit.ly/16gOvta
For more on prohibited wage deductions go to http://bit.ly/14IFZ3S
For more on restrictions on deducting from employees' pay, go to http://www.labor.state.ny.us/workerprotection/laborstandards/faq.shtm
For more on unemployment benefits and seasonal work, go to http://www.labor.state.ny.us/ui/claimantinfo/beforeyouapplyfaq.shtm#0