Legal Rights of Servers and Wait Staff in Massachusetts

Oct 5, 2011

Although the legal rights of servers and wait staff under Massachusetts wage and hour laws are very specific, many managers and supervisors still routinely violate the laws. In order to increase the profitability of a restaurant, a manager may require a server to wait to clock in until the server receives the first table of patrons.  Or a manager may require a server to stay in the restaurant and do side work until closing although the server has already waited on his or her last table and has clocked out.  These practices – requiring servers to “work off the clock” – are illegal. Wait staff must be paid for all of their hours worked.

Massachusetts law currently provides that restaurants may pay servers $2.63 an hour, so long as their tips and hourly pay rate, when added together are equal to or greater than the state minimum wage, which is currently $8.00 an hour. If the total hourly rate for the server including tips does not equal $8.00 an hour, then the restaurant must make up the difference.

Many restaurants follow a practice where wait staff must “tip out” other restaurant employees.  Although tip pooling is permitted in certain circumstances, restaurant managers must handle tip sharing properly. Massachusetts law permits tip sharing, so long as the distribution of tips is limited to wait staff employees, service employees and service bartenders. Employers cannot retain tips. Restaurant managers cannot require wait staff to share their tips with (1) employees who have managerial responsibility and (2) employees who were not serving patrons directly. Servers therefore can’t be required to pool their tips with  managers who supervise restaurant employees or non-wait staff employees such as kitchen staff.  Owners and managers of restaurants cannot require servers to share a portion of their tips with them.

Servers in Massachusetts should know that they are legally entitled to see their payroll records. Servers are also legally entitled to a copy of their personnel record within 5 days of a request.

Massachusetts law provides that restaurant managers are prohibited from retaliating against wait staff who pursue their wage and hour rights.

Servers in Massachusetts restaurants work hard for their wages. There are laws to protect the rights of wait staff. If you have any questions about the law in Massachusetts, contact employment lawyer Maura Greene, Law Office of Maura Greene, LLC, Six Beacon St., Suite 205, Boston, MA 02108, at 617-936-1580.  In 2016, 2015, 2014 and 2013 the Boston Globe named Maura Greene as one of Boston’s top-rated employment attorneys.  Call us, we’re friendly!

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