N.Y. Comp. Codes R. & Regs. tit. 12 § 490.7

Current through Register Vol. 46, No. 45, November 2, 2024

Section 490.7 - Tips of service employees serving catered or banquet meals (section 480.4, unemployment insurance law, section 517, subd. 1). [labor law, section 530]

(a) Whenever an employer and patron agree, under any of the conditions outlined in paragraphs (1) through (3) of this subdivision, that a service employee serving catered or banquet meals shall receive a specified amount or percentage called a gratuity, tip or other similar designation, the aggregate of the wages and the gratuities actually disbursed to the service employee by the employer shall constitute remuneration as that term is defined by section 517 of the Unemployment Insurance Law. No other gratuities shall be deemed to have been received:

(1) If there is an agreement between the employer and the union having jurisdiction over the banquet waiters providing that the service employees shall receive from the employer for each function a fixed sum designated as "wages and tips" and the agreement prohibits any soliciting of gratuities by waiters from patrons.

(2) If there is an agreement between the employer and the union providing:

(i) that the service employees shall receive from the employer an aggregate amount which includes the payment at an agreed rate per hour and a sum designated as "tips";

(ii) that the amount of such tips by agreement shall represent a proportionate share or a stipulated percentage of the patron's bill or a fixed amount per person;

(iii) that the agreement specifically prohibits the solicitation of gratuities.

(3) If there is an agreement providing that the service employee shall receive a specified amount for services performed and a proportionate share of a total gratuity given by the patron to the employer and there is no prohibition in the agreement against solicitation for gratuities, but where in actual practice there is no solicitation because of arrangements between the employer and the patron.

(b) Provisions of section 480.4 insofar as it applies to catered or banquet meals shall not be applicable to fact situations covered in paragraphs (a)(1), (2) and (3) of this section but shall apply whenever the service employee receives from an employer an agreed amount as cash wages for services performed and in addition receives gratuities from the individual to whom the catered or banquet meals are served and when gratuities are not the subject of prior negotiation by and between the employer and the patron.

N.Y. Comp. Codes R. & Regs. Tit. 12 § 490.7