In Bynog v. Cipriani Group (1 NY3d 193, 802 NE2d 1090, 770 NYS2d 692 [2003]), the Court left open the question as to whether Labor Law 196-d, which forbids an employer from retaining any part of a gratuity or "any charge purported to be a gratuity" for an employee applies only to a voluntary gratuity or tip presented by a customer or whether it may also apply to a service charge that is held out to the customer as a substitute for a tip. The Court concluded that a charge that is not a voluntary payment may be a "charge purported to be a gratuity" within the meaning of the statute. The Court held "that because plaintiffs were independent contractors and not employees of the defendants, they were not entitled to recover service charge payments." However, the Court "reserved judgment as to whether those waiters would be entitled to a share of the service charge under Labor Law 196-d if the waitstaff were employees" (id. at 199 n 4).