Worker Rights
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The minimum wage for restaurant workers

The federal minimum wage for non-tipped workers under the Fair Labor Standards Act (FLSA) is $7.25 per hour, unchanged since 2009. The federal tipped minimum wage — the subminimum wage — is $2.13 per hour, unchanged since 1991. Employers may pay this lower cash wage to tipped restaurant workers only if the worker's tips bring total hourly earnings up to at least $7.25 across the pay period. If tips fall short of that gap, the law requires the employer to make up the difference. Workers are owed the full minimum wage, period.

State minimum wages are often higher than the federal floor. The applicable wage for any restaurant worker is the higher of federal, state, or local. As of 2026, seven states (California, Oregon, Washington, Nevada, Minnesota, Montana, Alaska) plus the District of Columbia, Chicago, and Michigan have eliminated the tipped subminimum wage entirely — tipped restaurant workers in those jurisdictions are paid the full minimum wage as a base, with tips on top. In the remaining states, the subminimum wage for tipped workers can be as low as $2.13 federal or a state-specific amount.

For a state-by-state breakdown of the tipped minimum wage and ongoing campaigns to end the subminimum, see OFW's state campaigns page and the issue page.

Wage theft in the restaurant industry

Wage theft describes any practice in which a restaurant employer pays a worker less than the law requires. It is the most common workplace violation in the U.S. restaurant industry. The Department of Labor's Wage and Hour Division recovers tens of millions of dollars in stolen wages for restaurant workers every year, and OFW's research has documented wage theft rates above 80 percent in some markets. Common forms of restaurant wage theft include:

• Off-the-clock work. Requiring workers to set up before clocking in, do side work after clocking out, attend mandatory meetings without pay, or stay late to close without recording the time.
• Sub-minimum cash wage with insufficient tips. Paying the $2.13 (or state) tipped wage but failing to top workers up to the full minimum wage when tips fall short across the pay period.
• Illegal tip pooling. Forcing tipped workers to share tips with managers, owners, supervisors, or kitchen staff in ways federal law prohibits.
• Tip withholding or skimming. Employers keeping a portion of credit-card tips, charging "processing fees" against tips, or simply not handing tips over.
• Overtime denial. Failing to pay 1.5x for hours over 40 in a workweek, or averaging hours across multiple weeks to avoid overtime.
• Illegal deductions. Charging workers for broken dishes, walk-outs, register shortages, or uniforms in ways that drop their pay below minimum wage.
• Independent-contractor misclassification. Treating delivery drivers, runners, or other workers as 1099 contractors to dodge minimum wage and overtime obligations they are owed as employees.
• Unpaid training and breaks. Not paying for short rest breaks (which federal law treats as compensable) or unpaid "training" shifts.

Tip pooling and tip ownership

Tips are the property of the tipped employee. Federal law is explicit: under the FLSA, an employer cannot keep any portion of an employee's tips for any reason, regardless of whether the employer takes a tip credit toward the minimum wage. Managers, supervisors, and the restaurant owner cannot participate in a tip pool.

A valid tip pool is one in which all participants are employees who customarily and regularly receive tips — typically servers, bartenders, bussers, food runners, and barbacks. If the employer pays the full minimum wage with no tip credit, tip pools can also include back-of-house staff like line cooks and dishwashers. Managers and supervisors cannot share in tips in either case.

If your restaurant employer has been keeping tips, requiring tip-outs to managers, or charging credit-card processing fees against your tips in ways that exceed actual processing costs, those practices are likely illegal under federal wage and hour law. State law in many jurisdictions imposes additional protections.

Overtime pay for restaurant workers

Under the FLSA, non-exempt restaurant workers are entitled to 1.5 times the regular rate of pay for every hour worked over 40 in a workweek. For tipped workers paid at the subminimum, the overtime rate is calculated on the full minimum wage, not the tipped wage. Common overtime violations restaurant workers face include:

• Averaging hours across two-week or biweekly pay periods to avoid hitting 40-in-a-week.
• Paying overtime at the cash subminimum rate ($3.19/hour) instead of the correct rate based on the full minimum wage.
• Misclassifying assistant managers or shift leads as "exempt" salaried employees when their duties make them eligible for overtime.
• Working through unpaid breaks that should be on-the-clock.
• Off-the-clock cleanup, prep, side work, or banking.

Sexual harassment in the restaurant industry

OFW's research consistently finds that the U.S. restaurant industry generates more sexual-harassment complaints filed with the EEOC than any other industry — despite employing only about 7 percent of U.S. workers. Tipped workers, who depend on customer goodwill for the bulk of their pay, are especially vulnerable. Under Title VII of the Civil Rights Act, employers are required to maintain a workplace free from harassment by managers, coworkers, and customers. Federal law protects you whether the harassment is from a manager, a coworker, or a regular at the bar.

If you have experienced workplace sexual harassment as a restaurant worker, you can file a complaint with the U.S. Equal Employment Opportunity Commission or your state human rights agency. Most state agencies offer longer filing windows than the federal EEOC, which generally requires a complaint within 180 to 300 days of the incident. Retaliation for reporting harassment is separately illegal under federal and state law.

Retaliation: what's protected, what's illegal

Federal and state law protect restaurant workers from retaliation when they exercise their rights. Retaliation includes firing, demoting, cutting hours, reassigning to worse shifts, blackballing, intimidating, or threatening immigration enforcement against a worker who has:

• Filed a wage and hour complaint with the DOL or a state agency.
• Filed a harassment or discrimination complaint with the EEOC.
• Reported a workplace safety violation to OSHA.
• Discussed wages or working conditions with coworkers (protected concerted activity under the National Labor Relations Act).
• Participated in a union drive, signed a union card, or attended an organizing meeting.
• Cooperated with a government investigation or testified in another worker's case.

If you have been retaliated against for exercising any of these rights, you may be entitled to reinstatement, back pay, lost wages, and additional damages. Retaliation complaints can be filed with the agency you originally complained to (DOL, EEOC, OSHA, NLRB) or with your state's labor commission.

Workplace rights regardless of immigration status

Federal wage and hour protections apply to every worker, regardless of immigration status. The Fair Labor Standards Act covers undocumented workers exactly as it covers everyone else. State and federal labor agencies generally do not ask about immigration status, do not require a Social Security number to begin a wage complaint, and do not share information with U.S. Immigration and Customs Enforcement. Employers who threaten ICE in retaliation for a wage complaint are themselves committing a separate violation of federal law.

OFW does not share information with employers, ICE, or any government agency. If you have experienced wage theft, harassment, or retaliation, your status does not bar you from acting on the rights you already have.

Where to file a complaint

If you believe your rights as a restaurant worker have been violated, the following agencies handle most worker complaints:

• U.S. Department of Labor, Wage and Hour Division — minimum wage, overtime, tip pooling, off-the-clock work, child labor. dol.gov/agencies/whd or 1-866-487-9243.
• U.S. Equal Employment Opportunity Commission (EEOC) — sexual harassment, race or national origin discrimination, retaliation for protected complaints. eeoc.gov or 1-800-669-4000.
• National Labor Relations Board (NLRB) — retaliation for union activity, wage discussions with coworkers, other protected concerted activity. nlrb.gov.
• Occupational Safety and Health Administration (OSHA) — unsafe kitchen conditions, burn hazards, harassment that creates an unsafe workplace. osha.gov or 1-800-321-OSHA.
• Your state labor department — most state agencies handle wage complaints faster than federal, and state minimum wage and tip laws are often more protective than federal.

What OFW can help with

One Fair Wage is the national restaurant and service worker organization, with a 300,000-member network across all 50 states. We are not a law firm and we do not provide legal representation. What the OFW worker rights program offers is:

• Trainings and plain-language information about your federal and state rights as a service worker, in English and Spanish.
• Referrals to partner attorneys and legal aid groups who handle wage-and-hour, harassment, retaliation, and tip-pooling cases — information and referrals, not direct representation. See how referrals work →
• Referrals to partner legal aid organizations, pro bono attorneys, and impact-litigation groups in our network of partners across our target states.
• Connection to the OFW campaigns ending the subminimum wage, raising the minimum wage floor, and rebuilding the restaurant industry.
• Story support if your situation is relevant to a current OFW legislative campaign or research report — with your permission and only on the terms you set.

The program starts with New York service workers and expands to additional target states as it grows. If you are outside our current target states, reach out anyway — we will point you to the best resource we know in your area.

Important disclaimer

This page provides general information about federal and state workplace rights affecting restaurant workers and tipped workers. It is not legal advice and does not create an attorney-client relationship between you and One Fair Wage. Wage and hour law varies by state, city, and the specific facts of each case. If your situation calls for legal advice or representation, we will refer you to attorneys in our network or to partner legal aid organizations where capacity exists.

Last updated June 2026. Restaurant workers should verify specific state wage rates and statutes of limitations with their local Department of Labor office or a legal aid organization in their state — state law varies and changes over time.