Massachusetts Laws Regarding Payment of Minimum Wage for Restaurant Side Work
Do tipped employees have to be paid the basic minimum wage for side work in Massachusetts?
Restaurant employees in Massachusetts are almost always paid a tipped rate. That Massachusetts tipped service rate is currently $6.75 per hour and is well below the Massachusetts basic minimum wage which is currently $15.00 per hour. That’s allowed because tipped employees make up the difference in tips. It is also the case, however, that these tipped employees spend a considerable amount of time performing non-tipped work, which is commonly referred to as side work. Below, we explain what restaurant side work is, how tipped work differs from non-tipped work, and whether your employer has to pay you the full basic minimum wage for restaurant side work under Massachusetts law.
What is restaurant side work?
"Side work" is the restaurant industry's term for the many tasks a server, bartender, busser, food runner, or other front-of-house employee performs that are not part of waiting on customers. It is the work that keeps a restaurant running but that no customer tips you for. Common examples include:
Setting up and stocking service stations before a shift (rolling silverware, filling condiments, brewing coffee, stocking glassware and supplies);
General cleaning — wiping down windows, tables, and chairs, sweeping and mopping floors, scrubbing surfaces, and emptying trash cans;
Breaking down and closing the restaurant after it locks its doors; and
Other non-serving duties such as general building maintenance and training new hires.
Side work often happens before the restaurant opens, after it closes, and during slower stretches of a shift when an employee is not actively serving customers. Because no customers are present (or being served) during much of this time, the employee has no opportunity to earn tips while doing it.
Tipped work versus non-tipped work — and why the difference matters
The distinction between tipped work and non-tipped work often lies at the heart of cases involving servers and tipped employees not being paid the basic minimum wage.
Tipped work is work for which an employee customarily and regularly receives tips — taking orders, serving food and drinks, bartending for customers, and otherwise providing direct service to patrons. Massachusetts allows a restaurant to pay employees who do this kind of work a reduced hourly cash wage, called the "service rate," which is currently $6.75 per hour — far below the state's basic minimum wage of $15.00 per hour. The law lets the employer count the employee's tips toward making up the $8.25-per-hour difference. This is known as taking a "tip credit."
Non-tipped work — side work — is different. When an employee is scrubbing floors before the doors open or breaking down a station after closing, there are no customers and no tips to count. The justification for paying the reduced service rate simply is not there.
In short: the service rate exists because tips are supposed to fill the gap up to $15.00 per hour. When an employee is doing work that generates no tips, there is nothing to fill that gap.
Under Massachusetts law, should I be paid the full minimum wage for side work?
That depends. Under Massachusetts law (M.G.L. c. 151, §§ 1 and 7, and the regulations at 454 CMR 27.03), an employer may pay the $6.75 service rate only when strict conditions are met. Among other things, the employee must actually receive enough in tips that, when added to the service rate, the employee’s total pay sums to at least the $15.00 minimum wage, the employee must be told in writing how the service rate works, and the employee must keep all of their tips (except through a lawful tip pool). If those conditions are not met, the employer must pay at least the full basic minimum wage.
Courts applying Massachusetts law have also recognized two related limits that matter for side work:
Separate (dual) jobs. When a tipped employee is effectively doing a second, non-tipped job — the kind of maintenance, cleaning, or other duties that are unrelated to serving customers — the employer must pay the full minimum wage for the time spent on that work. The tip credit applies only to the hours spent actually serving customers.
The 20% limit. Even for non-tipped tasks that are "related" to serving, when an employee spends a substantial amount of time — generally more than 20% of their time — on such tasks, the employer cannot pay the reduced service rate for that time.
The practical takeaway is straightforward: when a tipped employee is doing significant non-tipped side work — especially before opening, after closing, or when not serving customers — Massachusetts law generally requires the employer to pay the full $15.00 minimum wage for that time, not the $6.75 service rate.
My employer did not pay me the Massachusetts minimum wage for restaurant side work. What do I do?
If you have worked as a server, bartender, food runner, or other tipped employee at a Massachusetts restaurant that pays you the tipped service rate while you perform side work, you may be entitled to additional wages under Massachusetts law. Contact Steffans Legal to discuss your rights.
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