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barton55
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Posted on Friday, December 24, 2004 - 02:25 am:   Edit Post Print Post

Anyone know of any resources online or organizations I can contact to find out legal information on management vs employee tip outs? I do know some of the laws but I have a particular question that maybe someone here can answer.

I've been working at a 5 star restaurant in Beverly Hills Ca. for about 15 years. We have agreements between the front waiters, back waiters, bartenders and busboys which are agreed upon tip out percentage. These have been changed a couple of times to restructure needs over the last 15 years and were always done in a meeting with servers and the tipped out employees with a manager acting as sort of an arbitrator - which I believe is the way it is supposed to be done in California. There is a vote etc and all is agreed upon. This is based upon job description and what services the busboys and backwaiters and bartenders and front servers are expected to do.

Recently the new management (it's changed about 5 times in the last 3 years but that's nothing new because I think I've personally trained over 30 managers since I've been with the organization) has started to change the staff around a little for special occasions - namely, New Years, Valentines day etc.

Our situation as it stands is, the front servers accept the tip and process it and tip out the other employees. other than that, there is no "pool" so to speak. One these "special occasions" the management is staffing extra back waiters to perform duties in the front waiter job description. No extra tip percentage is being asked for from the front waiters. The Management has decided the extra "help" will be paid by the tip out to the back waiters.

This would be an example. In our restaurant, it's the front waiters duties to put down steak knives, pasta spoons, share plates, sea food forks, dessert spoons etc. However on some of these very busy nights, they have added extra staff to do ONLY those tasks for the entire floor. There will be 1 or 2 extra people responsible for silvering and plating a table. They do not handle any back waiter duties as per the job description which the tip percent is based upon. The management has decided to call them "back waiters" but just for that night and tip them from the back waiter pool.

I understand the management is responsible for staffing the restaurant in any way he/she sees fit to get the job done. What I'm not clear on is, does the management have the legal right to change the job description for a few nights a year in order to make it easy on them (no confrontations with the servers) and use the back waiter tip money to pay what I consider as a servers helper.

To me it would be the same as bringing in a sommelier a few nights a year (which our wine sales and recomendations are done by the front waiters) then demanding the Busboys use their tips to pay the sommelier.

I know this is kind of long but I'd be greatful if someone could point me to some information or share any they have. I have discussed this with the management and they don't seem to really know much but I don't want to get the restaurant into any trouble. I would like to ward off any law suits before they happen.

thanks in advance.
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barton55
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Posted on Friday, December 24, 2004 - 03:57 am:   Edit Post Print Post

Wow, I just read the whole thread below "owner taking tips" started by scarlet. Californialaw, george, teleburst and others all make great points. Thanks for the information.

In my situation though I don't think it's come to that point. Our front waiters understand that with the type of restaurant they work for, without the quality of service of the busboys, backwaiters and bartenders, the front waiters job simply would not exist. There is no way our guests from all over the world would come back if our busboys only made 15 grand a year working 5 dinner shifts.

Our servers typically bring in an average of $65,000 a year for a five night shift. The back waiters, about $45,000. busboys about $25,000 and bartenders about $60,000. You can't just walk off the street and work here. All of our employees have extensive restaurant service resumes.

In my particular quest, it's not as much a case of exact law, as the only outcome would be a change in policy which if the front waiters tipped the busboys 1 cent per night, They would not have jobs becauase no one would come to the restaurant. Homeless people on crack wouldn't even work here for that kind of money.

There has never been an issue of how much the server who handles the service tip out and distributes it. Yet. My question is more on how much input, responsiblity or changes does Manangement have regarding the agreed upon tip percent schedule.
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californialaw
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Posted on Friday, December 24, 2004 - 11:14 am:   Edit Post Print Post

Since your in California I feel like I can answer this completely.... Here is a fact sheet, if you have any questions please contact the Department of Labor Standards Enforcement Agency. They will be able to further explain...

While Tips and Tip Share is a hotly debated issue, it is also a legal issue as well. "Gratuities" include any tip, gratuity, money, or part thereof that has been paid or given to or left for an employee by a patron of a business over and above the actual amount due the business for services rendered or for goods, food, drink, or articles sold or served to the patron. Any amounts paid directly by the patron to a dancer employed by an employer subject to Industrial Welfare Commission Order No. 5 or 10 shall be deemed a gratuity. (Labor Code ß 350)

Employers are prohibited from using tips as a credit against wages owed by the employer. Tips are the "sole property" of the employee or employees to whom they are given or for whom they are left. Since the employer does not pay tips, they are not considered part of the regular rate for overtime purposes nor can they be required of the employee or employer. (Labor Code ß 350, et seq. and Leighton v. Old Heidelberg, Ltd. (1990) 219 Cal.App.3d 1062)

An employer that permits patrons to pay gratuities by credit card shall pay the employee the full amount of the gratuity that the patron indicated on the credit card slip, without any deduction for any credit card payment processing fees or costs that may be charged to the employer by the credit card company. Payment of gratuities made by patrons using credit cards shall be made to the employee not later than the next regular payday following the date the patron authorized the credit card payment. (Labor Code ß 351)

Employees may voluntarily agree among themselves to pool or share their tips, but only under certain circumstances, may the employer require such tip sharing or pooling. (Leighton v. Old Heidelberg, Ltd. (1990) 213 Cal.App.3d 1062) Since Tip Pooling and Tip Sharing are inherently the same thing, collectively the employee is under no obligation to exceed the ruling in Leighton which is to exceed 25 percent of the Receipients daily tips. The employer may not in anyway retaliate against any individual who does not wish to participate in the tip pool and other employees may not threaten, coerce, retaliate or harrass any invidual to relinquish a part of his tips that are directly given to him or her.

The Tip Pool whether it be based on Sales, Percentage, or some other similar manner is still deemed voluntary and objective. Whereas, if an employee recieves a cash sum from a customer that is directly handed to an individual or implied to be given to that individual, such property is his or hers and is free from being shared regardless of whether or not someone has also visited the table for any finite period of time. If an individual is directly viewable to a guest, but not directly for a substantial period of time involved in the servicing of an individual patron, such tip is deemed the property of who recieved the payment over and above the price for services and goods.

There is usually a huge misconception by both the Department of Labor Standards and employers alike on the issue of tips. However, the best way to solve the issues as they arise is collective bargaining agreements that are set up by the employees, not the employers. The employer is under an obligation to not allow the employees to set up a system where employees who can not share in such tip pool, infact share in such tip pool.
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barton55
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Posted on Friday, December 24, 2004 - 12:24 pm:   Edit Post Print Post

Thanks Californialaw. From reading your other posts on the subject of tips, I see you've done your homework.

"Since Tip Pooling and Tip Sharing are inherently the same thing, collectively the employee is under no obligation to exceed the ruling in Leighton which is to exceed 25 percent of the Receipients daily tips." Thats a good piece of information in that our servers are asked to tip 43% of their tips. However this is fairly standardy practice for a restaurant of this caliber and the tip % was agreed upon by the tip collectors.

Also

"The employer may not in anyway retaliate against any individual who does not wish to participate in the tip pool and other employees may not threaten, coerce, retaliate or harrass any invidual to relinquish a part of his tips that are directly given to him or her."

We had a server a few years ago who continually undertipped the staff for one reason or another. As we knew we could not fire this person, this person also caused a lot of tension on the floor amoung the other servers who did willingly and gratefully tip according to the agreement. We had no choice but to limit this servers shifts until this person ultimately left because it was affecting our guests.

But in my particular situation, none of the above is mentioned.
These would be the facts.
1. All the servers have graciously tipped out the staff already. So that is not in question at this point.

2. The management then takes the busboy tip out and demands a portion of it go to staff that are NOT busboys, by the definition of their job description -- the job description the servers collectively agreed upon to tip out on.

Does that make sense? The management is effectively hiring another couple employees for the night who do most of the additional waiters work (as per their job description) so the waiters can concentrate on beverage sales.

How they are trying to get around the tip issue is saying "we're going to call these people Busboys tonight" so they don't have to ask the servers for extra money to tip out these employees. They have added a new position that does not exsist in any job description and are demanding the busboys pay that person.

So I'm fairly clear about the laws regarding the tipped server vs. the management. What I'm searching for is, once the money is ALREADY tipped out, (again, already agreed upon by the servers based on duties and services by job description) is the management allowed to take THOSE tips and distribute them as they see fit? In this case to employees who do not share the same job description as say a busboy or a back waiter, yet are paid from that tip pool?

There doesn't seem to be much information on this at least from what I can find. I know the management is not allowed to just take the money and stick it in their pocket, it seems to me that if a manager needs an extra host/hostess for the evening, he/she can staff one and tip him/her from the back Waiter tip pool. Unless there are specific laws regarding tips once they leave the hands of the server and are in the 'Pool'.
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teleburst
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Posted on Friday, December 24, 2004 - 01:02 pm:   Edit Post Print Post

Just so you know, this is the interpretation that the California Labor Board has on their web site, verbatim:

"Q. I work in a large restaurant as a waiter. My employer told me that I am required to share my tips with the busboy and the bartender. Am I obligated to do this?


A. Yes. According to a California court, Labor Code Section 351 allows involuntary tip pooling. Therefore, your employer can require that you share your tips with other staff that provide service in the restaurant. In this regard, itís DLSEís position that when a tip pooling arrangement if in effect, the tips are to be distributed among the employees who provide "direct table service." Such employees could conceivably include waiters and waitresses, busboys, bartenders, host/hostesses and maitre dís. Employees who do not provide direct table service and who do not share in the tip pool include dishwashers, cooks, and chefs, except in restaurants where the chefs prepare the food at the patronís table, in which case the chef may participate in the tip pool. Additionally, tip pooling cannot be used to compensate the owner(s), manager(s), or supervisor(s) of the business, even if these individuals should provide direct table service to a patron".

As you can see, this conflicts somewhat with what californialaw is saying.

Here's another reference:

http://www.rutan.com/pdf/Newsletter50.pdf

californialaw is basing his or her brief based on the fact that there is still room for the courts to rule on the "voluntary" vs. "involuntary" aspect, since that seems to be allowed *through interpretation* of the California Labor Board, as it isn't directly addressed, as far as I can tell, in the Code itself.

Leighton vs. Old Heidelberg doesn't seem to be accessable to us mere mortals, so perhaps californialaw could quote the verbiage that the Court used to support his statement that, "Employees may voluntarily agree among themselves to pool or share their tips, but only under certain circumstances, may the employer require such tip sharing or pooling. (Leighton v. Old Heidelberg, Ltd. (1990) 213 Cal.App.3d 1062)". The references that I've seen regarding Leighton seem to only address the capping of such tip sharing arrangements. I'd be interested to see the exact verbiage.

What *is* clear from the Five Feets ruling is that a manager (in the state of Caifornia) is prohibited from taking a share of tips simply because they might perform some service funtions, as they are acting as an agent for the company due to their managerial functions of hiring, firing and admin stuff. If this had been the case in Rhode Island, our friend who worked for the Indian restaurant would have had cause for action. Perhaps she could call her labor board and see if this ruling might be of interest to the labor people there (Jameison vs. Five Feet that's referenced in the rutan link above).

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george
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Posted on Friday, December 24, 2004 - 01:47 pm:   Edit Post Print Post

The only reason this California court has stated that Labor Code Section 351 allows involuntary tip pooling is because when an employee receives part of the tips presented to a different employee there need not be any voluntary action on the part of the receiver. Remember, tip pooling as tip splitting is where the waiter gives part of their tips to the busboy. Clearly, there need be no mutual agreement or voluntary consent on the part of the busboy. As where employees give an accounting to their employer where the employer redistributes the tips to employees upon some basis to which they have mutually agreed among themselves there is voluntary consent required by all. The first passage concerning tip splitting does not imply that giving tips to another worker may be involuntary only that receiving such moneys may be involuntary. Clearly California has taken this Code out of context and has errantly implied that all participants in a tip splitting situation need not voluntarily consent to such practices when the truth is only those who receive money from a tip splitting arrangement logically would be exempt from voluntarily agreeing to such an arrangement. The federal requirement that an employer must allow the tipped employee to retain all tips would preclude employers from requiring that waiters give part of their tips to the busboy. The requirement that an employer must allow the tipped employee to retain all tips would not preclude busboys from receiving tips from the waiters. It would preclude busboys recieving tips from the employer via forced tip outs for tips cannot become the property of the employer that he may give them to the busboy.
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barton55
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Posted on Friday, December 24, 2004 - 03:43 pm:   Edit Post Print Post

Thank you very much teleburst and George. I understand this part of it fairly well. I believe there is another thread about what you all are talking about. My question has NOTHING at all to do if tips are volunatry or not. Not a single thing.

I'll try to make it as clear as possible. This is the important part. The tip collector (our front waiters in this situation) have ALREADY TIPPED INTO THE POOL as per the agreement. There is no arguement at this point. The money is already in the envelope. Absolutely NO dispute WHATSOEVER between the front waiters and managers. The Front waiters have already tipped out the agreed upon amount.

So as informative as you all have been, with all due respect, nothing really has to do with the question I'm trying to ask. I am piecing together things but nothing concrete.

My question is, once the servers have already agreed to tip the 'service' employees out based on their job description.... "Does the management have the right to hire employee's who do not fit into a particular job description and arbitrarily decide that a portion of a busboy or back waiter tip from the pool be used to pay for it?"

Having been a waiter once myself, I already understand pretty well the ambiguity of tipping laws with respect to employers vs. patrons etc.

In my situation, I'm in charge of the managers though I don't work on a restaurant floor. I work out of the main office. It's come to my attention that the management may or may not be participating in something "shifty". Like I said before, we've already dealt with servers who continually refuse to tip the agreed upon amount. We either reduce their shifts or we add more servers to the floor. We base our shifts on performance which includes tip average, sales average and guest complaints/acclamation. Ironically in every case, the servers who refused to tip the agreed upon amount had the lowest tip average, lowest sales average and the most complaints.
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teleburst
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Posted on Saturday, December 25, 2004 - 01:46 am:   Edit Post Print Post

"------------------------------------------------------------------------------- -
The only reason this California court has stated that Labor Code Section 351 allows involuntary tip pooling is because when an employee receives part of the tips presented to a different employee there need not be any voluntary action on the part of the receiver. Remember, tip pooling as tip splitting is where the waiter gives part of their tips to the busboy. Clearly, there need be no mutual agreement or voluntary consent on the part of the busboy".

I think that you've finally gone insane.

BTW, how are you going to do a whack job on *this* sentence:

"Therefore, your employer can_require_that you _share_ your tips with other staff that provide service in the restaurant".

Parse THAT one, Tonto.
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californialaw
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Posted on Saturday, December 25, 2004 - 01:08 pm:   Edit Post Print Post

Teleburst I know you have done your homework, and I do value your opinions on issues, however, both cases Leighton and the Five Feet cases are seemingly moot cases. First off LEighton was a split decision based on Summary Judgement, it was never appealed because Maria Leighton moved to New York. The simple facts of the Leighton case are still at issue. Remember this case was decided as only permissable within the color of Section 351, not absolute. Like I have said time and time again, if there are other issues underlying the ruling that can make a prima facie case such as conversion, intentional economic interference, invasion of privacy for commerical exploitation, these are all issues for a jury to decide, not a judge. Where as Summary Judgement is based on Rule 56 where there is no question of material fact. As was the case of Leighton, whereas, the only question was a question of law. However, permissable is still permissable and not a guaranteed right. The DLSE themselves say that tip pooling is to be "narrowly construed" to the facts in the Leighton case. I guess this is why senator Alpert is pushing SB1511 which will give the employer the "absolute" ability to mandate tip pools. As of now, such is still open to interpretation.
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george
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Posted on Saturday, December 25, 2004 - 01:33 pm:   Edit Post Print Post

What are you talking about Teleburst?
All this regulation is implying is that tip outs need not be vouluntary on the part of the receiver. As far as invountary tip outs on the part of the giver, the waiter, federal law clearly states that an employer must allow the tipped employee to retain all tips. Not just 75%.
What I am stating, Teleburst, is tip pooling is not where the employer or the courts give tips to the busboy, it's where the waiter gives part of his tips to the busboy.

I would like to figure out where the Leighton v. Old Heidelberg, Ltd. case came up with this implication that 25% is customary and reasonable. Federal laws state that a tip pooling agreement may not require employees to contribute a greater percentage of their tips than is customary and reasonable. Since tips are defined as the sole property of the tipped employee, who other than the tipped employee would have such authority to determine what is reasonable. While this 25% may be veiwed as customary by the courts only the tipped employee would have any authority to determine if it is reasonable. We are talking about the tipped employee's property.
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teleburst
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Posted on Saturday, December 25, 2004 - 02:16 pm:   Edit Post Print Post

"Teleburst I know you have done your homework, and I do value your opinions on issues, however, both cases Leighton and the Five Feet cases are seemingly moot cases. First off LEighton was a split decision based on Summary Judgement, it was never appealed because Maria Leighton moved to New York. The simple facts of the Leighton case are still at issue. Remember this case was decided as only permissable within the color of Section 351, not absolute. Like I have said time and time again, if there are other issues underlying the ruling that can make a prima facie case such as conversion, intentional economic interference, invasion of privacy for commerical exploitation, these are all issues for a jury to decide, not a judge. Where as Summary Judgement is based on Rule 56 where there is no question of material fact. As was the case of Leighton, whereas, the only question was a question of law. However, permissable is still permissable and not a guaranteed right. The DLSE themselves say that tip pooling is to be "narrowly construed" to the facts in the Leighton case. I guess this is why senator Alpert is pushing SB1511 which will give the employer the "absolute" ability to mandate tip pools. As of now, such is still open to interpretation".

Well, that's sort of the point, isn't it? Unless a court case is definitely ruled on by the Supreme Court, it's as moot as any other lower court ruling. It becomes precedence but the issues can be modified by another court at any time (just as you are trying to do). So, the thing is, it was *you* who used Leighton to justify your statement which seems in conflict with the wording on the California Labor Board's own website, i.e., "Employees may voluntarily agree among themselves to pool or share their tips, but only under certain circumstances, may the employer require such tip sharing or pooling. (Leighton v. Old Heidelberg, Ltd. (1990) 213 Cal.App.3d 1062)". The Labor Board's web site says that involuntary tip pools *can* be run by an employer and doesn't give any limitations other than the fact that a manager or the employer cannot participate.

I don't have access to the ruling, and most internet references only refer to the percentage aspect.

I'm still wondering how you deal with conversion in the case of bar transfers. Or the fact that holding strictly to conversion can conceivably cause more financial harm than preventing strict conversion to take place, especially when the conversion is agreed to by all parties upon employment. For example, if this ruling virtually demands that a restaurant either not hire (or cut back dramatically) back service staff such as buspeople and server assistants, and they are forced to hire more servers in order to maintain the current level of service, because the courts rule that only the person whose name is on the check that corresponds to the credit card slip is entitled to 100% of that tip, and the end result is that a servers section is cut by half, it is certainly possible to envision that the server's total income might drop by more than that of their current burden. It's a case of cutting off the nose to spite the face (and my mom used to say).
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teleburst
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Posted on Saturday, December 25, 2004 - 02:29 pm:   Edit Post Print Post

"What are you talking about Teleburst?
All this regulation is implying is that tip outs need not be vouluntary on the part of the receiver".

You are WRONG. Pure and simple.

"Therefore, your employer can_require_that you _share_ your tips with other staff that provide service in the restaurant".

Note the phrase "...REQUIRE THAT YOU SHARE YOUR TIPS WITH OTHER STAFF...".

This is involuntary in respect to the GIVER, not the RECEIVER.

Give it up, please. You're getting really desperate.

BTW, the referenced code never mentions tip pools directly anyway. And it includes the phrase "employee or employees", implying that a tip can actually be distributed, but this is a matter of interpretation, as is *any* linkage of this code to the concept of tip pooling. The responsible agency in California has already given *their* interpretation and it's they, not you, whose opinion currently matters.

Here is the entire relevant passage in toto. I'm sure you'll spin it like a dreidel on Chanakkah, but that's your M.O. innit?

351. 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. An employer that permits
patrons to pay gratuities by credit card shall pay the _employees_ the
full amount of the gratuity that the patron indicated on the credit
card slip, without any deductions for any credit card payment
processing fees or costs that may be charged to the employer by the
credit card company. Payment of gratuities made by patrons using
credit cards shall be made to the employees not later than the next
regular payday following the date the patron authorized the credit
card payment.


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jammie
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Posted on Sunday, December 26, 2004 - 08:08 am:   Edit Post Print Post

Barton55, you know what has concerned me over the years? Does the back waiter or bus boy pay taxes on their portion of the tip out?
We just had a big smack down at work some are not claiming properly.Some days I tip out $30-$40, am I liable to claim that income? If you are walking with 43% of your earned tips, there is a large sum of money going into the pool from every server.
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teleburst
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Posted on Sunday, December 26, 2004 - 08:48 am:   Edit Post Print Post

"Barton55, you know what has concerned me over the years? Does the back waiter or bus boy pay taxes on their portion of the tip out?
We just had a big smack down at work some are not claiming properly.Some days I tip out $30-$40, am I liable to claim that income? If you are walking with 43% of your earned tips, there is a large sum of money going into the pool from every server".

You don't have to claim tipouts. The receiver of your tipout is required to claim it, and if they don't, that's their responsibility, not yours. However, you are supposed to be keeping a daily tip diary in order to support your claimed income, and on there you are supposed to list the names of those you tip out (believe it or not!) Of course, this is only "necessary" in the case of an audit, but it's the law.

And no, I don't keep one either. I lways start one and then after about a week, I start forgetting and I just let it slide. It really does suck to be required to do it. I wish regualr people knew the pain of being required to write down their daily wages.

BTW, I set a new personal record on Christmas Eve. I waited on 75 people on 24 checks, which means that I turned the tables in my section 6 times! I had to come in a 2pm instead of 4 though. Sales were $1333 before taxes and my tipout was $95! I walked with $180 though, so percentages were good. People were in the Christmas spirit, which was good.
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george
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Posted on Sunday, December 26, 2004 - 01:36 pm:   Edit Post Print Post

Teleburst, in the statement_therefore_ your employer can require that you share your tips with other staff that provide service in the restaurant, the word therefore is reliant upon the assertion that tip pooling, specifically the giving of tips may be involuntary. While it is understandable and logical that the receiving of tips through a tip pool need not be voluntary, an assertion that the giving of tips through a tip pool need not be voluntary is ridiculous. One can only give what is ones property. Clearly this passage which you have boastfully cited as your proof is simply a an errant opinion of a judge, not written law.

As far as your assertion that the passage which reads An employer that permits patrons to pay gratuities by credit card shall pay the _employees_ the full amount of the gratuity that the patron indicated on the credit card slip, the words "pay gratuities" explains everything. A tip is to be distinguished from any payment of a charge. Tips are a sum given in recognition of some service. You see the passage doesn't state were patrons are allowed to give tips, it states where patrons are allowed to pay gratuities. Tips are not something paid. Service charges are something paid and therefore such a passage is asserting that service charges must be paid to the employees for service charges are the only type of gratuity that can be payed by a customer.

Also, if I were to state that an employer must pay his employees minumum wage it would not mean that an individual employee was not entitled to munumum wage. Likewise, the passage which reads An employer that permits patrons to pay gratuities by credit card shall pay the _employees_ the full amount of the gratuity that the patron indicated on the credit card slip, would not mean that an individual was not entitled to a tip given on a credit card.
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teleburst
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Posted on Sunday, December 26, 2004 - 02:10 pm:   Edit Post Print Post

"Teleburst, in the statement_therefore_ your employer can require that you share your tips with other staff that provide service in the restaurant, the word therefore is reliant upon the assertion that tip pooling, specifically the giving of tips may be involuntary".

EXACTLY. That's what I said.

"While it is understandable and logical that the receiving of tips through a tip pool need not be voluntary, an assertion that the giving of tips through a tip pool need not be voluntary is ridiculous".

No it's not. It's what the current interpretation CLEARLY states. As I said, there's nothing in the code itself that directly addresses tip pools at all, so everything is interpretation. Neither YOUR or MY interpretation matters - only what the regulating agency interprets. And I just quoted the interpretation verbatim.

"One can only give what is ones property. Clearly this passage which you have boastfully cited as your proof is simply a an errant opinion of a judge, not written law".

There IS no "written law" in the California Code that specifically mentions tip pools, either voluntary or involunatry. Therefore, to use your logic, since it isn't mentioned, it can't be prohibited either way. The only thing that matters is that the relevant agency has offered an interpretation that is currently essentially the force of law, and that's just the way it is, whether or not you like it.

"As far as your assertion that the passage which reads An employer that permits patrons to pay gratuities by credit card shall pay the _employees_ the full amount of the gratuity that the patron indicated on the credit card slip, the words "pay gratuities" explains everything".

No it doesn't. It's just a phrase that covers the concept of paying gratuities (which are interchangeable with the word tip, when it comes to the language of the statutes (gratuities not being "service charges"). The key phrase is "the full amount of the gratuity" linked to the word "employees", indicating that the singular grautity can indeed be split between more than one employee, and there's nothing that defines it as voluntary *or* involuntary.

"A tip is to be distinguished from any payment of a charge. Tips are a sum given in recognition of some service. You see the passage doesn't state were patrons are allowed to give tips, it states where patrons are allowed to pay gratuities".

They are not talking about "service charges", they are talking about tips. This is clear from the very first sentence:

"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" because, as you yourself has pointed out, the service charge belongs to the employer and they can do anything they want with it. Therefore, the word gratuity is interchangeable with the word tip, in this context.

"Tips are not something paid. Service charges are something paid and therefore such a passage is asserting that service charges must be paid to the employees for service charges are the only type of gratuity that can be payed by a customer".

You're wrong. Unlike the US regulations, the California code doesn't make a separate distinction about service charges. Here is their definition of gratuity:

""Gratuity" includes any tip, gratuity, money, or part thereof
that has been paid or given to or left for an employee by a patron of
a business over and above the actual amount due the business for
services rendered or for goods, food, drink, or articles sold or
served to the patron. Any amounts paid directly by a patron to a
dancer employed by an employer subject to Industrial Welfare
Commission Order No. 5 or 10 shall be deemed a gratuity".

Note that it says "left for an employee". This conflicts with *your* definition of a "service charge", which is something that belongs to the EMPLOYER.

"Also, if I were to state that an employer must pay his employees minumum wage it would not mean that an individual employee was not entitled to munumum wage".

Sure it would.

"Likewise, the passage which reads An employer that permits patrons to pay gratuities by credit card shall pay the _employees_ the full amount of the gratuity that the patron indicated on the credit card slip, would not mean that an individual was not entitled to a tip given on a credit card".

Of course not. Nobody is saying that it is. I'm not saying that a tip can't go to a single tipped employee. That's just a strawman.
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george
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Posted on Monday, December 27, 2004 - 01:40 pm:   Edit Post Print Post

Teleburst wrote:
I'm not saying that a tip can't go to a single tipped employee.

Yes you are, for you are agreeing with Califonia's interpretation that tips belong to those who give direct service to the customer.
Whether a customer in California presents a tip to an individual employee, explains to the owner that his tip is intended for an individual employee or sneeks a tip into an individual's pocket, California is stating that tips are the property of all those who provice direct service to the customer and as such have allowed employers to take that tip away from the individual so that it can be distributed to all those who provide direct service to the customer. It sounds to me like California is committing tort of conversion on the public for clearly they are turning the public's tip into property that they can bestow on those of their choosing.
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teleburst
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Posted on Monday, December 27, 2004 - 02:31 pm:   Edit Post Print Post

" It sounds to me like California is committing tort of conversion"

Looks like goerge has learned a new phrase. Thanks alot californialaw...now we'll have to suffer that phrase ad nauseum (emphasis on the nauseum part).

BTW, the California law does NOT prohibit a guest from giving a server a direct tip not to be shared if that guest so designates.
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barton55
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Posted on Tuesday, December 28, 2004 - 12:24 am:   Edit Post Print Post

jammie - In our restaurant, all tipped out employees are required to pay taxes on what is reported. The IRS continually checks our books every year or two to compare sales information and reported tips.

Easy to do since 98% of our sales/tips are credit cards.

What I'm wondering if I start another thread that has something to do with my original question, will teleburst and George make it into yet another thread about the possible legalities whether or not waiters must tip out?

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george
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Posted on Tuesday, December 28, 2004 - 04:35 pm:   Edit Post Print Post

Teleburst srote:
The California law does NOT prohibit a guest from giving a server a direct tip not to be shared if that guest so designates.

George:
If California law is interpreted as it is currently being interpreted;

Q. I work in a large restaurant as a waiter. My employer told me that I am required to share my tips with the busboy and the bartender. Am I obligated to do this?

A. Yes. According to a California court, Labor Code Section 351 allows involuntary tip pooling. Therefore, your employer can require that you share your tips with other staff that provide service in the restaurant.

Then an employer can require that the server share part of his tips with other workers even if the customer designates that it should not be shared. That's the problem, Teleburst.

Customers are being denied there right to give tips to an individual employee by an interpetation of Caifornia's state law which proclaims that customers intend to tip waiters, busboys and bartenders and which subsequently mandates that a customer's tip must be intended for waiters, busboys and bartenders even though our constitution guarantees customers the right to determine for themselves who their tip is intended for. Do you see the problem yet?

Clearly Claifornia has unconstitutionally deprived the citizens of California their liberty to determine for themselves who their tip is intended for.

As long as the citizens of California are unaware of what is actually becoming of their tip there is no need to change the unconstitutional interpretation of their laws concerning tips and tip pooling. The media has pretty much silenced all outcries by the tipped employees of their state so that the citizens will remain unaware that their constituional rights are being violated.

You see, that's why I'm stuck with only this hard to find little massage board to relay the truth to the public of what is actually happening to their tip.
The media has refused to print thousands of articles that I and many other tipped employees have sent them. The TV stations refuse to even speak to us about the subject. What am I supposed to garner from this response we've received from the media? They don't want the public to be aware. It seems to me to be all a part of a great plan to defraud the public. Most customers believe that when they present a tip, it is the property of the person to whom they have given it but the truth is it is fraudulently becoming the property of the courts that they may determine who should be the recipient.

GREAT CONSPIRACY? GOOD BUSINESS? WHERE DO WE DRAW THE LINE?
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scarlett
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Posted on Wednesday, December 29, 2004 - 05:02 am:   Edit Post Print Post

"You see, that's why I'm stuck with only this hard to find little massage board to relay the truth to the public of what is actually happening to their tip." Maybe the public already knows the truth.

George,does this mean you were banned from that Yahoo group you used to spam at?


BTW you can go over to MSN Groups or Yahoo Groups and start your own site. They are easy to start, takes all of about 2 minutes.

Or start a Topica message board of your own.

Google Groups might also have a tipping site for you to join; I know you can start a Google Group.

So, go for it..


~Imagine if they gave a war and nobody came!~
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george
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Posted on Wednesday, December 29, 2004 - 01:32 pm:   Edit Post Print Post

What yahoo board was I banned from? I have no idea what your talking about.
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teleburst
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Posted on Wednesday, December 29, 2004 - 03:19 pm:   Edit Post Print Post

"What yahoo board was I banned from? I have no idea what your talking about".

No you DON'T know what she's talking about since she didn't say that you were banned from ANY board.

She's referring to the fact that you blanket virtually every restaurant forum there is, so you were lying when you said that you were "stuck" with only this board in order to get your message out.

Does "On The Rail" ring any bells?
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scarlett
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Posted on Thursday, December 30, 2004 - 12:17 am:   Edit Post Print Post

BTW George, there is a waiter/waitress board on MSN groups. I was a member at one time, but nothing ever happened there so I unjoined.

And creating a group on MSN really is easy George. I've got a few myself, including the biggest and most active hippie group on MSN.

Teleburst, do you ever miss the old The Waiter's Revenge board? I know I do.
~Imagine if they gave a war and nobody came!~
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jammie
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Posted on Thursday, December 30, 2004 - 09:12 am:   Edit Post Print Post

Barton, this is exactly why I ignore George. I may accidently read a line or two, but not much more than that can I endure. Why feed into his nonsence?
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bartender79
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Posted on Thursday, June 30, 2005 - 05:21 pm:   Edit Post Print Post

I am a bartender in california. I have been tending bar for nearly 5 years now. I recently moved and found a new job working in a restaraunt. In this particular job the serving position is the most desired one for one main reason, the money. Managers and those with senority set the standards on the "tipping out" to fellow employees. Thier thought are that tipping is not mandatory. Moreover, bussers and bartenders are geting the shorter end of the stick. Servers are making $100+ a night tipping the bussers and bar $5 each.
My question to you is; does a law excised in California that dictates tipping procedures?
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jammie
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Posted on Thursday, June 30, 2005 - 10:58 pm:   Edit Post Print Post

Bartender, did you read the previous posts on this thread? I may have some info for you. Im not sure, they are 6 months old and alot of brain cells have met an untimely demise since. If not on this thread cruise the other threads. Californialaw had posted alot on legalities. He was a law student, and seemed to pass valuable info.

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