California Labor and Employment Law

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17 Responses to “Tip-Pooling – Can My Employer Take My Tips and How?”

1. Dan Waldron | July 31st, 2009 at 7:16 pm
   

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2. Rings | August 2nd, 2009 at 11:58 am
   

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3. Clemento | August 2nd, 2009 at 5:05 pm
   

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4. George | August 18th, 2009 at 11:44 am
   

   The question I have for you is, what right does a judge have to determine, for customers, who their tip belongs to?

   The reason that the courts are all over the place in concerns to who may be included in an employer mandated tip pool is because they know they have no authority to determine who the customer’s private property, his tip, belongs to.

   While these judges know that they have no authority to determine who the customer’s tip belongs to, they simply want to create an illusion that the courts are authorized to determine who the customer’s tip belongs to.

   This way, no employer or group of employees can claim that their employer is taking THEIR tips.

   How can an employee bring a claim against his employer for taking his tips, in violation of California labor code, when the courts have suggested that only they have the authority to determine whether or not the tips given such worker actually belong to him?

   Don’t you see what these judges are doing. They are fraudulently suggesting that customers have given their tips over to the courts rather than giving their tips over to a specific worker.

   In my opinion, the judges who have ruled that employers may confiscate and appropriate the customer’s tip to certain types of workers are simply acting as agents of the employer. Obviously, judges have the authority to direct and control the acts of employees. If a judge rules that an employee must allow his employer to take his tips for a tip pool, then the judge is clearly directing and controlling the acts of the employee.

   California labor code 351 states,

   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.

   What most people fail to realize is that California labor code also clearly defines what the word “AGENT” actually means.

   Section 350 clearly explains that,

   “Agent” means every person other than the employer having the authority to hire or discharge any employee or supervise, direct, or control the acts of employees.

   Aren’t judge who rule that employees must allow their employer to pool their tips directing and controlling the acts of employees?

   While some might argue that such a law would not apply to judges, again, what is overlooked is the fact that California labor laws also adress this subject of contraversy.

   Section 356 states,

   The Legislature expressly declares that the purpose of this article is to prevent fraud upon the public in connection with the practice of tipping and declares that this article is passed for a public reason and can not be contravened by a private agreement. As
   a part of the social public policy of this State, “this article is binding upon all departments of the State”.

   Isn’t the California justice department a department of the atate?

   Isn’t it fraudulent for judges to auggest that the California justice department has the authority to determine who the customer’s private property, his tip, belongs to.. when state laws specifically prohibit them from such acts?

5. Eugene Lee | August 19th, 2009 at 11:44 pm
   

   George, you raise many good points. I think the tip pooling cases provide the perfect example of how judges all too often are expected to fill in the gaps created by poorly drafted legislation. Personally, I would much prefer it if judges enforced the laws strictly as drafted and left it to the legislators to fix the problem. Judicial activism is, in my opinion, one of the biggest problems facing our nation. While most judges are fair, just and competent, all it takes is a few bad apples to wreak havoc on countless people’s lives and fortunes. With so much power comes much potential for abuse.

6. George | August 25th, 2009 at 10:08 am
   

   What was poorly drafted? The law states that “No employer shall collect any part of the gratuities paid, given or left for an employee by a patron.

   The only spaces that have been created were created by California judges who previously ruled that employers who require employees to pool their tips are not violating state law by collecting the tips paid, given or left for an employee by a patron.

   Now that employers have been allowed to illegally collect the customer’s tip into one fund, the spaces that have been created are, now no one knows who the tips belong to. Now, no one knows how much each employee should receive. Now, no employee, or for that matter no group of employees, can claim that their employer is taking “their” tips due to the fact no one knows who the tips actually belong.

   You see when tips are illegally collected, those workers who are given tips have no way of proving what tips are theirs and what amount they were given. Collecting tips, as is the case when employers require tip pooling, destroys all the evidence substantiating who the tip belongs. If I give a worker a $10 tip and his employer requires that he turn it over to his employer so that his employer can pool it among the staff, then the $10 tip I gave him is mingled all together with other tips to the point where there is no way to substantiate what amount the employee is legally entitled to.

   The bottom line is, the courts have basically rendered the law useless. How can an employee or group of employees claim that their employer is taking their gratuities when the courts have basically allowed employer an ability to detroy all the evidence which subtantiates who the tips belong?

   While state laws explain that no employer shall collect any part of the gratuities paid, given or left for an employee by a patron, the reason for such prohibitions is obvious. Customers are the ones who are supposed to be determining who is entitled to their tip, not judges.

   If employers were prohibited from requiring employees to pool their tips, each employee would be in possession of the tips given him. As such there would be evidence to substantiate what tips belong to an employee and what amount actually belongs to him. If employers were prohibited from requiring the pooling of tips, then customers, rather than judges, would be determining who should be protected to their tips.

   The problem is, if employer were prohibited from requiring tip pooling, then the emplyee who was given a tip would actually be protected from his employer taking his tips. I believe the courts are intentionally allowing employers to require tip pooling simply so that employers can contrene state law and take the tips paid, given or left for an employee by a patron.

   How can an employee prevent his employer from taking his tips, when the courts say it’s ok for his employer to take his tips and mingle them together with other worker’s tips?

   In my mind the only question that remains is, how much did the restaurant industry pay off these judges to blatantly misinterpret state law to the point where the law would become both unavailing and unenforcable?

7. George | August 25th, 2009 at 10:33 am
   

   One last comment.

   Why have the courts concentrated their efforts on determining who tips left in a restaurant are intended for?

   Most tips are paid on a credit card. Most tips are given to the particular worker to whom the customer chooses to tip. Look at hair cutters, taxi cab drivers, valets, doormen, skycaps, and others who receive tips. It’s usually quite apparent that customers want to choose who they are tipping.

   Why are the courts viewing tips simply as undesignated money left in a business, when in most cases, tips are directed at certain individuals? I believe tips should not be viewed as undesignated money simply left in a buisness establishment. I believe that when a customer gives an employee a tip, it should be viewed as the property of the employee to whom it was given.

   These judges that have ruled certain types of workers may be included in an employer required tip pool are infinging on my, the customer’s, private property. Don’t tell me who my tip is inteded for. I can determine, for myself, who my tip is inteded for. The way I choose to designate who my tip is intended for is, I personally give the worker to whom I want to tip my tip.

   I am sick and tired of judges stealing my, the customer’s, tip and giving it over to business owners to control to their interests. I want these judges locked up in prison. I, the customer, did not give the courts permission nor the authority to appropriate my private property. They are stealing the customer’s private property when they rule as to whom may share in the customer’s tip.

   The judges who are errantly viewing tips as undesignated money simply left in a busines are disrespecting the actions of the customer. In so doing, they are also infringing on the property rights of the customer.

   If I were to take these judge’s money and appropriate it to people I think should have a share of their money, I would be locked up in prison for stealing. What makes these theives think that they are above the law?

8. Eugene Lee | August 25th, 2009 at 11:57 am
   

   George, you raise many perceptive points. I’ve sent you an email off-line. Let’s discuss this further.

9. George | August 26th, 2009 at 3:15 pm
   

   California labor laws specifically explain that neither an employer, nor an agent of the employer, can take any part of the tips paid, given or left for an employee by a patron.

   What the law is explaining is that tips are the private propery of each and every customer who chooses to tip. As the customer’s private property, no one, including judges, have any authority to take his tip or, for that matter, appropriate his tip for him unless he authorizes such appropriation.

   While state laws explain that Every gratuity is
   hereby declared to be the sole property of the employee or employees to whom it was paid, given, or left for, what is being overlooked is the fact that state laws clarify that tips are that which are given by a patron.

   The law starts out by explaining that 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”.

   So when one looks at the following statement which explains that Every gratuity is hereby declared to be the sole property of the employee or employees to whom it was paid, given, or left for, one must not overlook the fact that the same conditions would apply. That being, tips must be paid, given or left for employee or employees by a patron.

   The courts seem to think that they can pay, give or leave the customer’s tip to whom-ever they want. They seem to think that state laws do not prohibit them from appropriating the customer’s tip to workers of their choosing.

   They should think again.

   California labor laws specifically target judges as those who would be included in such prohibitions.

   Please note that California labor code starts off by explaining that “agent” means any person with the authority to control the acts of employees. Certainly when a judge’s rules that employees must allow their employer to pool their tips, the judge is controlling the acts of employees.

   Section 356 goes on to state that The Legislature expressly declares that the purpose of this article is to prevent fraud upon the public in connection with the
   practice of tipping and declares that this article is passed for a public reason and can not be contravened by a private agreement. As a part of the social public policy of this State, this article is binding upon all departments of the State.

   Departments of the state would include judges. Therefore, a judge has no authority to take the customer’s tip and appropriate it to those he thinks deserve a share of the customer’s tip.

   While many judges in California seem to want us to believe that they are authorized to determine who the customer’s tip belongs to, their rulings are the fraud state laws specifically attempted to protect the public from.

   Just as employers cannot take your tips, judges cannot take your tips and give them over to the control of the employer. By ruling that just about everyone in a restaurant is entitled to share in the customer’s tip, the courts have given the customer’s tip over to business owners so that they can use the customer’s money, instead of their own, to pay their workers required wages. It’s nothing but theft of the customer’s private property.

   I am serious when I say, these judges should be locked up in prison. If I were to treat someone’s property like these judges in California are treating the customer’s tips, I would be locked up in jail.

   Now please let me reiterate.

   Legislature expressly declares that the purpose of this article is to prevent fraud upon the public in connection with the practice of tipping and declares that this article is passed for a public reason and can not be contravened by a private agreement. As a part of the social public policy of this State, this article is binding upon all departments of the State.

   Now please enforce the law and lock up these judges who are fruadulently suggesting that they are authorized to appropriate my, the customer’s, private property. I, as a customer, have not authorized judges to appropriate my tips for me. What they are suggesting is fraudulent. No one has authorized California judges to appropriate the customer’s private property, their tips, for them.

10. George | October 2nd, 2009 at 10:54 am
    

    As a consumer, I would just like to add that my tips are not intended for all those who provide service to the customer, as the courts have fraudulently suggested.

    When the courts of California ruled that customers intend to tip all those employees who provide service to the customer, they were lying.

    I tip whom-ever I want to tip. How dare these judges suggest that they know who I am tipping.

    What California’s judges have actually ruled is, if a customer wants to tip, customers must tip all those who provide service. What California’s judges have ruled is, a customer cannot choose who he wishes to tip. What Califonia’s judges have ruled is, a customer cannot tip workers individually. What California judges have ruled is, customers cannot determine who should be protected to their tip.

    You see, while customers should be afforded the right to choose who they are tipping, and while customers should be able to tip an individual worker, California’s judges don’t want customers to be able to do that. When customers are actually allowed to tip an individual and when customers are actually allowed to determine who their tip is intended for, employers cannot take control of the customer’s tip due to the fact that state laws prohibit an employer from taking the tips given an employee.

    However, when customers are prevented from determining who is entitled to their tip, those workers who receive tips directly from customers are unable to prevent their employer from taking, controlling and benefitting themselves to their tips.

    Imagine how financially beneficial it would be to you if you were able to confiscate and control money that didn’t belong to you.

    Employers are being allowed to control money that doesn’t belong to them. While California’s judges seem to want to bicker over who tips actually belong, it shouldn’t be that hard to understand that the tips belong to the customer.

    Why are the courts allowing employers to confiscate the customer’s tip when clearly the courts are unsure and unable to determine precisely whom customers are intending to tip?

    The truth of the matter is, judges have no way of actually knowing who each and every customer is intending to tip. Since judges have no way of knowing who each and every customer intends to tip, they cannot allow employers to confiscate the customers tip for a tip pool which appropriates the tips to specific workers.

    The only way that a judge could righfully rule that employers may confiscate and appropriate the customer’s tip is if they had solid evidence supporting such appropriation.

    The truth of the matter is, judges don’t have any evidence to support the idea that customers want their tip appropriated for them. Judges are simply making up lies to support support the idea that customers want their tip shared among all those who provide service to the cusotmer.

    Why would judges make up lies and then utilize those lies to support their ruling?

    Is it not a lie for a judge to suggest that he knows who each and every customer is intending to tip?

    Why would a judge fruadulently suggest that he knows who customers are intending to tip?

    Again, the truth of the matter is, judges don’t know who customers are intending to tip. They are simply attempting to defraud workers and the public into believing that a tip given a worker does not belong to the worker.

    You see, when Calfornia judges ruled that customers intend to tip all those who provide service to the customer, what they were actually ruling was, tips don’t belong to an individual who is given a tip. What they were actaully doing was using their authority to strip workers of their right to claim a tip as their own.

    When workers are stripped of their right to claim their tips as their own, their employer is able to benfefit himeself to their tips. What these judges have actually accomplished is, they have rendered state laws ineffective in protecting the customer’s tip from the greedy hands of business owners.

11. George | October 14th, 2009 at 10:36 am
    

    What I want to know is what can be done when judges blatantly utilize lies in court to support their ruling?

    In California several judges have fraudulently suggested that certain types of workers are legally entitled to share in the customer’s tip. Without any consent from customers, these judges have fraudulently suggested that the courts, rather than the customer, are authorized to determine which employees are legally entitled to the customer’s tip. The courts have ruled that tips given workers in restaurants belong to all those workers who provide some kind of service to the customer.

    Is this not a lie?

    As a consumer, I am telling you I have not authorized judges to determine, for me, who I am tipping.

    I do not believe that California’s labor laws are attempting to define who is entitled to the customer’s tip. When the law explains that every gratuity is hereby declared to be the sole property of the employee or employees to whom it was paid, given or left for, I am certain that what the law is expaining is that tips are the sole property of the employee to whom the customer has chosen to give, pay or leave a tip to.

    And yet we have judges in California who are fraudulently suggesting that they, rather than customer’s, are authorized to determine who the customer’s tip belongs to.

    Obviously, judges in California don’t care about the truth, that being, that only the customer is authorized to determine who his tip belongs. Obviously, judges in California want business owners to be able to control the tips customer’s present. Judges in California have stripped customers of their right to determine who their tips belongs to, simply so business owners will inherit the ability to control such money. Now, rather than customers determining who will get their tip, business owners are in complete control over the money customer’s present workers in the service industry.

    What these judges in California have ruled is that an employee who is given a tip cannot claim it as his own.

    While state laws clearly entitle an employee to the tips customers give him, an employee is unable to claim tips as his own due to the fact that several judges in California have fraudulently suggested that they, rather than customers, are authorized to determine who is entitled to the tip.

    Judges in California have fraudulently suggested that state laws are defining tips as the property of all employees who serve the customer in some way. They blatantly refuse to acknowledge the fact that state laws would not and could not infringe on the customer’s right to determine who his tip belongs.

    Judges in California are fraudulently suggesting that state laws define who the customer’s tip belongs. The truth of the matter is, state laws are not defining who the customer’s tip belongs, such would be fraud on the public for a state law has no authority to infinge on the property rights and liberty of our citizens in such a manner.

    What state laws are clarifying is that as the customer’s private property, a customer may give, pay or leave a tip for whom-ever he chooses. What state laws are defining is that tips are the sole property of the employee to whom a customer has chosen to tip.

    Tips are not defined as the sole property of whom-ever judges feel deserve a share of the customer’s tip.

    California labor laws do not state that No employer or agent of the employer shall take, collect or receive any part of the gratuities paid, given or left for an employee by a judge. Califonia’s labor laws clearly indicate that it is the patron and the parton’s rights which are being protected by the law.

    Why are Califonia laws, which were enacted to protect the public, being transformed into laws which act to protect judges who blatantly strip patrons of their right to determine who their tip belongs?

12. George | October 14th, 2009 at 11:06 am
    

    Think about it. Now that the courts have stripped customers of their right to determine who their tip belongs, how can state laws protect their tips?

    While state laws explain that the law was enacted to protect the public in conection with the practice of tipping, the law is now protecting judges and their practice of stripping customers of their right to determine who their tip belongs.

    Why don’t judges want customer’s determining who is entitled their tip?

    Think about this answer. If customers are stripped of their right to determine who their tip belongs, business owners will be able to steal the tips for themselves.

    Is this the intent of the courts? I think it is.

    If the customer is stripped of his right to determine both who he is tipping and who an employer cannot take tips from, then the employer will be able to take tips from the employee the customer intended to tip.

    Judges are aiding and abetting business owners in stealing the customer’s tip by fraudulently suggesting that customers have no right to determine who their tip belongs. When it is fraudulently held that customers do not have a right to determine who their tip belongs, business owners are able to steal the tips for themselves.

13. George | October 15th, 2009 at 11:56 am
    

    California labor laws state clearly that no employer shall take any part of the gratuties paid, given or left for an employee by a patron.

    The word take is defined as to get into one’s hands, possession, control, etc., by force or artifice.

    Legally, take is defined as to obtain control, custody, or possession of often by assertive or intentional means b : to seize or interfere with the use of (property)

    While state laws clearly explain that an employer shall not take, collect or receive any part of the gratuities paid, given or left for an employee by a patron,

    California judges are blatantly lying and ruling that employers who collect and approptiate tips through the use of a tip pool are not violation state law.

    Why are judges being allowed to lie about the meaning of the word “take”?

14. jason | October 30th, 2009 at 1:51 am
    

    HI
    I am restaurant owner(sushi conveyor belt) in Washington State. I have 1 waitress and 3 sushi man, she told me that she wants 60% of the tip money for herself, we told “no” because we told her that we share among the 3 sushi man equal when I hire her. Even when sushi man get tip from customer he puts in the jar to be shared. As owner we like to think that customers are giving us for tip for service, food and not for just one person. If food is bad no tips, sharing helps the all employee to provide better service to customers. I don’t know about Washington State law buy I will be calling them tomorrow.

    When I go to restaurant I do not give my tip just for the waitress but to cook for great food and hope they share

    (sorry, not good writer it has been long time since i write)

15. George | November 18th, 2009 at 3:18 pm
    

    So when you go to a restaurant you do not give your tip just for the waitress but to the cook for great food and hope they share.

    When you give your tip do you expess exactly how you want your tip divided? Do you explain that you want the waitress to keep 50 percent and that you want the cook to have 50 percent of your tip? The reason I ask is that you seem to think it is reasonable to expect the waitress to know how you want your tip divided up. I think if you want to tip both the waitress and the cook, then it should be your responsibility, not the employer’s or the waitress’s responsibility to divide your tip the way you want it divided.

    How can you expect people to read your mind and correctly guess at not only who you want to tip but what amount you want each to receive?

    Why simply hope that they share when you could simply give each a tip and not have to worry about whether or not they shared your tip.

    The thing is, I respect your right to tip both the waiter and the cook. Why don’t you respect my right to tip only the waitress? When employers mandate tip pooling, customers like myself are stripped of our right to tip an individual of our choosing. While such practices could be viewed as a practice which simply attempts to accomodate customers such as yourself who want to tip several workers, such practices deprive customers like myself of our right to determine who our tip should belong.

    Do you understand what I am saying. Employers shouldn’t be allowed to pool the tips of customers who want to choose for themselves who they are tipping. By allowing employers to require tip pooling, customers like myself are prevented from determining who should receive our tip. If employers where prohibitted from requiring tip pooling, customers such as yourself would still be able to tip several workers.

    The point I am making is that while an allowance of employer mandated tip pooling strips customers such as my self or our right and ability to determine who will receive our tip, prohibitting employers from mandating tip pooling would not infringe on your rights to give several workers a tip.

    Allowing employers to require tip pooling directly interferes with the customers right and ability to determine who he is tipping. If employer required tip pooling where properly viewed as a violation of state law, all customers would retain the right and ability to determine who their tip belongs.

    While you suggest that tips should be shared, why don’t you just share your tips yourself and keep your thoughts to yourself about how my tips should be shared.

16. Jennifer | November 23rd, 2009 at 3:34 am
    

    I recently got a job at a conveyor belt sushi place in Washington State and was not aware of the required tip pooling. At the end of the night we do not receive our credit card tips and also have to hand over ALL our cash tips. The reason I got hired at this restaurant was because they had fired a couple of servers due to taking home part of their cash tips. When I received my paycheck at the end of the pay period, there was no way to tell what percentage of my tips I am actually receiving. I probably should ask my employer what percentage I am tipping out to the sushi men and the hostesses but I feel that would be useless considering they could lie about it and be pocketing some of the money for themselves (which I truly believe they are doing). There really is no way of calling them out if they are illegally taking our tips without knowing how much each person in the restaurant is getting paid and figuring the math myself.

    I agree that this law is useless because it states that employers cannot take our tips but creates a situation where there is no way to prove if they are breaking the law or not. They will be able to manipulate their workers and make a larger profit off of tips without any consequences.

17. Jason K. | November 30th, 2009 at 4:37 am
    

    I work in a Rest that has a mandatory “9% of sales” tip out to the house from servers which is then spread among other workers. Out of the 100% of the “9% of sales” tip out, it is broken down like this. 17% to bussers, 17.5% to food runners, 25% to bartenders, and what…40.5% to sushi chefs! Yeah you heard me right. The sushi chefs get more than all the bussers and food runners combined. They only have contact with a extremely small amount of the customers. Tell me this is not legal or at least they should only get tipped out on customers they have contact with?????

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