Is it legal for my boss to pay me a server’s wage instead of a caterer’s wage if I perform catering duties after my regular shift has ended?

UPDATED: Dec 6, 2011

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Is it legal for my boss to pay me a server’s wage instead of a caterer’s wage if I perform catering duties after my regular shift has ended?

Frequently, the catering department will host a private event in one part of the restaurant, while servers provide normal dinner service in another part of the restaurant. The catering staff is often “cut” leave before they have finished the event. Because the catering staff leaves before their work load is done, the normal, $2-an-hour severs must stay hours past their own duties are complete to finish the work of the catering staff ($25 per hour). In effect, the management is allowing the high-paid caterers to leave early so that they do not have the pay them for their work responsibilities.

Asked on December 6, 2011 under Employment Labor Law, District of Columbia


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

This is perfectly legal, unfortunately, so long as between your hourly wages and tips for the work week, you make a total amount equal to or greater than what minimum wage would be for the number of hours you worked. (Note: if you worked more than 40 hours in the week, you must also receive overtime for hours worked past 40.) So long as the employer complies with wage and hour laws, they may send the more expensive staff home and have the less-expensive staff do the work.

If you are not receiving, between tips and wages, and amount equal to at least minimum wage for the hours worked (plus overtime, if and as applicable), the wage and hours laws (e.g. the Fair Labor Standards Act, or FLSA) are being violated and you and your fellow serviers may have a cause of action or claim. Currently, federal minimum wage is $7.25 per hour.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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