Do fast food workers get their tips? Dept. of Labor says they should 

GUILDERLAND — Giving a tip to a worker is a matter of opinion, but getting a tip is a matter of law, as one Guilderland resident has learned.

When Robert Levine went to a local Subway restaurant with his grandson this month, he thought he was making a kind gesture by leaving a tip for the worker who took care of their order. But when he asked the worker whether she received the tip, she replied that workers don’t get their tips directly.

“I don’t even know why I said it, but I asked [the worker], ‘You get that right?’” Levine told The Enterprise this month. “She said, ‘No, it goes to the owners.’ I said, ‘Are you sure?’ And she said, ‘Yep, we don’t get it.’” 

The revelation that he was not boosting revenue for the hourly worker but instead the company that he had already paid for food “bothered me a little bit,” Levine said, so he took to social media to share his experience, because to his mind it was morally dubious, if not totally illegal. 

His post, on NextDoor, was seen by nearly 10,000 people in its first two days, and brought forth dozens of commenters who agreed that the situation as he described it was unfair. Many shared their own experiences as either workers, tippers, or both, with some also sharing their interpretation of state law and restaurant policies to bring some clarity to the issue. 

The bottom line — for this particular incident — is that it is unlikely anything illegal had occurred, and that there was perhaps instead a misunderstanding somewhere along the way. 

A manager at the Subway that Levine visited told The Enterprise this week that tips left by card for workers are collected and added to the workers’ paychecks, not pocketed by management. 

This is the same system described by one commenter on Levine’s post, who said she worked at a Subway in Scotia. 

“The credit-card tips were added into our checks,” the commenter said. “Depending on how many weekly hours you worked determined how much of a ‘cut’ you received. I’m not sure how the other stores do it but this owner made sure we got them.”

Brittany Lanning of Draper Construction, LLC, which owns a number of Subways in the Albany area, but not the one Levine visited, said that franchise owners are the ones who decide on tipping policy at Subway restaurants, not the parent company, and so there’s variation in how it’s handled at each location. Subways owned by Draper don’t allow people paying by card to leave tips, Lanning said.

Levine acknowledged to The Enterprise, when asked whether it was possible there was a miscommunication, that perhaps the worker didn’t understand the question, but said he thought the exchange was “pretty clear.”

In any event, the episode has revealed the bit of mystery that surrounds an everyday procedure, particularly as technology has evolved and added invisible steps that didn’t exist when tipping was solely a matter of handing cash over. 

For one thing, fast-food workers are under slightly different regulations than servers in traditional restaurants. In New York State, employers of servers are allowed to count tips against the servers’ wages and take what’s known as a tip credit. 

In most of upstate New York, the minimum hourly wage for a tipped food service worker — which does not include fast food workers — is $9.45, with employers allowed to take an hourly $4.75 tip credit, meaning that if the amount of tips the employee receives brings them above the total minimum wage, the employer is only responsible for paying $4.70 per hour. For comparison, the standard minimum wage for other employees in the state, outside of New York City, is $14.20. 

Fast-food workers are not considered tipped workers, despite the fact that many of these restaurants allow tips to be received, and so are entitled to the standard minimum wage with no opportunity for employers to count these tips against their wage. The Department of Labor is nevertheless clear that the workers are legally entitled to tips that customers leave.

How those tips get to the workers is more confusing, however, since tips can either be received directly — as when a customer leaves money on the table for a server — or pooled and then distributed by some other means, as appears to be the case at the Subway Levine visited. 

The Department of Labor declined to get into the weeds on tipping distribution with The Enterprise, instead encouraging anyone who feels that they’re being shortchanged to file a complaint and allow the Department of Labor to investigate each case. 

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