In the summer of 2022, Victoria Walter worked at the now-closed Pop’s Seafood Shack & Grill on Long Island. From the outside, it looked like a fun place to work: sand on the ground, palm trees on every corner, loud music and fire pits. And it was. She took shots of tequila with her co-workers, customers, even her manager. Sometimes, she says, she took home as much as $1,000 from a single shift.
But on an average day, she worked 15 hours, clocking over 20,000 steps, or nine miles. And, she says, she did it without a break.
“11 a.m. to 2 a.m., no breaks, no nothing,” said Walter.
Making employees work that long without a break is a violation of state rules. And while those regulations apply to almost all workplaces — factories aside — restaurants are rarely cited for breaking them.
Moreover, the rules are complicated. All workers are entitled to breaks ranging from 20 to 45 minutes, depending on when their shifts begin and how long they’re on the clock. While there’s a sector-specific code for factory workers, there’s no equivalent for hospitality workers.
And it’s not always easy to give waiters a few minutes off. “If your restaurant opens at 5 p.m. for dinner service, it’s impractical to have a massive break when customers are arriving to eat,” said Adam Reiner, editor-in-chief of The Restaurant Manifesto blog and a retired server with more than 20 years of experience.
According to Glenn Grindlinger, a lawyer specializing in wage and hour law at the Fox Rothschild firm, workers who feel their employer violated the rules can file a complaint with the state Department of Labor, but they can’t file a claim in court. The information in the complaints that have been filed, however, isn’t accessible to the public.
“The Department of Labor, with respect to the hospitality industry, has an unwritten rule that says as long as you’re providing a break of 30 minutes or more, for every six hours worked, they’ll deem you compliant,” said Grindlinger.
But some restaurants don’t even follow the unwritten rule. And workers are often left in the dark.
Vlady Guttenberg, who worked as a server at an uptown Manhattan restaurant for a year-and-a-half, says she didn’t know if she even could take a break during her shifts of seven to 10 hours, let alone when she could take it. She says that a manager once got in trouble for letting her know she could take a break.
It’s not black and white. Walter recalls that she would get a free meal during her shift, but she could eat it only when business was slow — which often meant that it would sit untouched for hours, sometimes for most of the shift. (Walter’s boss at Pop’s did not respond to requests for comment.)
And if Guttenberg needed to sit down for a few minutes, she could ask, but only if she did so sparingly.
Cynthia Estlund, a New York University professor who specializes in labor and employment law, explained that amendments to state law on the basis of industry differences can be a slippery slope. Still, she says, restaurants pose a unique case when it comes to the break code.
“It is often the smaller actors that are most problematic … and this does sound like a kind of sector-specific solution could make sense,” said Estlund.
Bigger restaurants and those with more corporate infrastructure have higher visibility, and thus tend to adhere more often to break codes, some workers say. Ava Young-Stoner, a server at an upscale lower Manhattan restaurant, says that her employer follows the break code to a T — almost irritatingly so.
“You go in, work for half an hour … take a 30-minute break. … It’s annoying, but also easier than leaving the service floor during service,” she said.
Her workplace is part of the Jean-Georges Restaurant Group, which includes more than 60 restaurants worldwide, 12 of which are in New York City.
“If the law was written with servers in mind, it would say ‘Restaurant managers should be prepared or qualified to cover all staff for a 15 to 30 minute period.’ That’s what would make it possible,” Guttenberg said. “It’s totally understandable that sometimes breaks don’t happen … but it should be acknowledged as a right.”
The upcoming holiday rush, when families who don’t want to cook, or can’t, pack restaurants for their celebratory meals, is an especially tough time for hospitality workers.
“I once worked a 13-hour shift on Thanksgiving with no breaks and no meal. But what were we supposed to do?” said Reiner.