If you asked me this question a year ago I probably would have told you, “not unless the tip is left for the manager and the manager alone.” After a flurry of cases in 2009, however, my answer may be a little different.
Labor Code Section 351 states, in pertinent part,:
No employer or agent shall collect, take, or receive any gratuity or a part thereof that is paid, given to, or left for an employee by a patron, or deduct any amount from wages due an employee on account of a gratuity, or require an employee to credit the amount, or any part thereof, of a gratuity against and as a part of the wages due the employee from the employer. Every gratuity is hereby declared to be the sole property of the employee or employees to whom it was paid, given, or left for.
Courts have long interpreted this to mean that tips left for employees may not be shared with management employees. Managers and supervisors are agents of the employer. Requiring employees to share their tips with the employer’s agents violates Labor Code 351.
Courts have interpreted this to prohibit tip-pooling arrangements where managers or supervisors receive a part of the tip. See, e.g. Jameson v. Five Feet Restaurant, Inc. 107138 (2003) [prohibiting a tip-pooling policy that required servers to share 10% of their tips with floor managers]. Courts have allowed tip-pooling arrangements so long as managers and supervisors do not receive tips left for the employees. See, e.g., Leighton v. Old Heidelberg, Ltd 219 1062 (1990) [approving tip-pooling policy that required waitress to share 15% of her tips with bussers that worked the same tables]; Budrow v. Dave & Buster’s of California, Inc., 171 875 (2009) [approving tip-pooling policy that required servers to share tips with bartenders]; Etheridge v. Reins International California, Inc. 172 908 (2009) [approving tip-pooling policy that required servers to share tips with kitchen staff, bartenders, and dishwashers].
A recent appellate court case carved out an exception to the seemingly straight-forward rule against sharing tips with management employees. In Chua v. Starbucks, 174688 (2009) the court upheld Starbuck’s “tip-allocation” policy where customers put tips into a tip jar that was intended to compensate all employees working the shifts, including shift supervisors. There were several key features to Starbuck’s policy that differentiated the “tip-allocation” policy from other seemingly similar “tip-pooling” policies.
Unlike a typical restaurant, the tip was not left on the table and was not part of the general bill or otherwise left for a specific individual. Starbuck’s had a tip bucket on the counter making it obvious that the tip would not be for any one specific employee. Rather, the tips were intended for a team of employees. Had the tip been left for a specific individual then the court likely would not have allowed the shift supervisors to share in the tip.
Starbuck’s tip-allocation policy only provided tips to people within the “chain of service.” In Starbuck’s case, the weekly tips were added up and divided amongst the employees that worked during that week. Employees received a pro-rata share of the tips based on the total hours worked by the employees.
It is important to note that while shift supervisors were allowed to receive a portion of the tip-allocation, store managers and assistant store managers did not receive any portion of the tips. Shift supervisors, while having some authority to hire, fire and discipline other employees, at least worked within the chain of service and were less likely to be considered the company’s “agents.” I suspect this particular criteria will be the subject of further litigation in future cases.
Tip-pooling and tip-allocation cases are on the rise. If you require employees to share their tips with other employees you should seek the advice of competent professionals to advise you regarding how to ensure your company complies with the law.The Law Office of Phillip J. Griego 95 South Market Street, Suite 520 San Jose, CA 95113 Tel. 408-293-6341 Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.
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