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May I Take Your Coat? The Coat-Check Paradigm

by Carolyn D. Richmond, Esq.

As the weather cools down and the holidays are upon us, guests come bearing two things: coats and packages. That means, coat-check season is here. Inevitably, two questions follow: (1) whether coat-check personnel should be on pay-roll; and, (2) whether coat-check personnel should be paid a tipped-rate.
(1) Whether coat-check personnel should be on pay-roll.
This is really a rhetorical question. All employees should be properly classified as “employees”. While some operators may feel the urge to save payroll costs and treat these part-time or seasonal employees as “independent contractors,” thus avoiding payroll taxes and the other “costs” of properly classifying coat-check personnel as employees—fight the urge. For numerous legal reasons, the Internal Revenue Service, the Department of Labor’s Wage and Hour and Unemployment Divisions, and other interested governmental agencies do not consider those individuals who perform the job functions of coat-check personnel as independent contractors.
There are certain third-party companies with whom a restaurant may contract to provide services including coat-check personnel. However, there is a danger to this type of arrangement if the third-party does not take the care to meet all of the legal requirements with its employees working within your restaurant. Courts and agencies often look to the restaurant operator for liability and damages through a theory of joint-employer status. Recent history has demonstrated that New York’s Attorney General has paid attention to this issue with respect to bathroom attendants. In essence, a joint-employer relationship often comes down to “control”. Courts will look at factors such as, where the work is performed and whose equipment is used; the degree to which the contractor or its agents supervised the workers’ work; whether the workers worked exclusively or predominantly for the contractor; and the extent to which the workers performed a discrete line job that was integral to the contractor’s process of production.
A coat-check employee even with seasonal employment and limited hours can make the same claims against an employer for unpaid wages, overtime claims, meal breaks, harassment or other employment claims. However, another serious risk for a restaurant operator when treating coat-check personnel as independent contractors may result in losing the protection of the workers’ compensation system. Quite simply, when a worker is not properly classified and treated as an “employee,” an employer loses the protection of the workers’ compensation laws. As a result, a coat-check worker who becomes injured on the job may be able to sue the restaurant and its corporate owners for all damages – including costly “pain and suffering” damages--if that worker was improperly classified as an independent contractor. Without the protection of the workers’ compensation defense, this could be a very costly mistake for a restaurant.

(2) Whether coat-check personnel be paid a tipped rate.
Yes. Coat-check personnel can be paid the non-food service worker tipped rate of pay under New York State law, as long as their tips when added to the tipped rate equal or exceed the minimum wage. Therefore, as with any front-of-the house tipped employees, coat-check employees must be required to report all tips earned.
Coat-check employees should receive and sign-off on any employee handbooks, tip policies, and be treated like all other restaurant employees. While coat-check personnel will add to a restaurant’s payroll for the season—the perceived short “gain” for not complying with the labor laws will invariably lead to very costly penalties and damages.

Carolyn D. Richmond practices labor and employment law with the national law firm of Seyfarth Shaw, LLP. Ms. Richmond can be reached at or (212) 218-5284.

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