Legal news and tips for employees

Tip-Pooling – Can My Employer Take My Tips and How?

 

Employer taking employee tipsSome History

For better or worse, tipping has become an accepted part of American commerce. It is a practice that first emerged in the late 1800s. In 1917, the California legislature passed a law for the first time prohibiting employers from taking any portion of employees’ tips. However, the courts struck down the law as a violation of constitutional due process. The legislature tried again in 1929 and this time succeeded. However, now the law permitted employers to credit tips against employees’ wages, i.e., use tips in place of wages. It wasn’t until 1975, after repeated failed attempts, that the legislature was finally able to pass a law that prohibited the practice of “tip credits”.

Labor Code § 351

California Labor Code § 351 now reads:

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.

Interestingly, the federal law – the Fair Labor Standards Act – continues to permit “tip credits”, though with restrictions. As usual, California laws continue to offer greater employee protections than their federal counterparts. While federal laws usually trump or “preempt” state laws, courts have ruled that this is not the case with the FLSA and the California Labor Code. Tidewater Marine Western, Inc. v. Bradshaw (1996) 14 Cal.4th 557, 567; Skyline Homes, Inc. v. Department of Industrial Relations (1985) 165 Cal.App.3d 239, 250-251.

Section 351 seems pretty simple and straightforward. However, it also left open some important unanswered questions that the courts took it upon themselves to answer.

Can My Employer Take My Tips?

Yes. . .

Many industries, particularly the restaurant industry, have a “house” practice of mandatory tip-pooling, in which the employer takes employees’ tips, pools them, then allocates the money to its employees as it sees fit. Tip pooling is nowhere mentioned in section 351 and that would therefore seem to make it an illegal “taking” of the employee’s “sole property”. However, the courts engaged in some fancy analysis to conclude it is permissible, so long as the distribution is “fair and reasonable”. Leighton v. Old Heidelberg, Ltd. (1990) 219 Cal.App.3d 1062. So to that extent, yes, your employer can take your tips away from you.

. . . and no

But the employer can’t take any part of your tips for itself either. Even if your employer sets up a mandatory tip pool, it and its “agents” (meaning any employee with managerial/supervisory functions) are prohibited from getting any of the money from that pool. That is clearly stated at the very beginning of section 351: “No employer or agent shall collect, take or receive any gratuity or part thereof . . .”.

So Who Can Participate in the Tip Pool?

Here is where things get tricky because the courts seems to be all over the place. Section 351 makes it clear that employers and their supervisory/managerial agents cannot get any of the money from a tip pool. But it is unclear what other employees can. Can the tip pool monies be allocated to dishwashers? Busboys? Sushi chefs? Janitors? Accountants? Security guards? Etc. Where do you draw the line?

Since 1990, the bright-line rule was that only those employees who are involved in “direct table service” are entitled to participate in the tip pool. Leighton v. Old Heidelberg, Ltd. (1990) 219 Cal.App.3d 1062. However, that all changed recently.

In March 2009, a court held that employees who did not engage in direct table service could still participate in the tip pool, so long as they were in the broader “chain of service”. Etheridge (Brad) v. Reins International California, Inc. (2009) 172 Cal. App. 4th 908. So, for instance, bussers who clear away plates after a customer has already left might not qualify as having engaged in “direct table service” but would qualify as having been involved in the “chain of service”, and so could participate in the tip pool. Another court held that bartenders could participate in tip pools, even if they never directly brought drinks to the customer’s table (although there the court stuck with the old model and ruled that this was “direct table service”). Budrow (Aaron) v. Dave & Buster’s of California, Inc. (2009) 171 Cal. App. 4th 875.

In June 2009, a court reversed an $86 mil. judgment when it held that supervisory/managerial agents could share in “collective tip boxes” because they were not “tip pools” but “tip allocations”. Chau v. Starbucks Corp., 174 Cal. App. 4th 688 (Cal. App. 4th Dist. 2009). I call this one the “Starbucks exception” because it only seems to apply if you work at Starbucks.

So the question of which specific employees can participate in a tip pool remains up in the air, to be answered on a case-by-case basis. The key for the courts is the intent of the tipping customer. If the tipper (arguably) intended that a type of employee share in the tip, then they are participants in the “chain of service” and/or “direct table service”. An accountant or security guard probably would not qualify under this standard, but a bartender and busser probably do.

My Employer Has Violated the Tip Laws, Can I Sue?

Yes you can. At the moment, it is unclear whether you have a private right of action under section 351. The California Supreme Court is considering that question at the moment. Lu (Louie Hung Kwei) v. Hawaiian Gardens Casino, Inc., 2009 Cal. LEXIS 5505 (Cal. May 26, 2009).

However, as your lawyer can explain to you, you can still probably bring a claim for violation of the California Unfair Competition Law (California Business & Professions Code 17200 et al.) and/or for penalties under the California Private Attorney General Act (California Labor Code § 2698 et al.). But I recommend you leave that to your lawyer.

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  • Phoenix

    So my boss makes the servers tip 30% of our tips to the chefs and kitchen staff. Is this legal?

  • Kevin

    There’s a lot going on here. Sorry I don’t have the time to answer all of these but if you have a contact number and a list of questions I can help. Cheers, Kevin.

  • tina

    I’ve worked at a particular salon since 2008. On 2011 the boss enforced a new rule that they will deduct 20% off on credit card gratuities, 10% off on check gratuities and cash gratuities we keep 100%. They say it’s for tax purposes so that the employees don’t have to worry about it. I never thought to ask or fight back but recently my clients are telling me I’m suppose to keep 100%.

    What do I say? Is what the boss doing illegal? The boss does keep a log sheet on the gratuities that are deducted.
    Advice please thank you!!!

    • https://www.CALaborLaw.com Eugene Lee

      Is the employer reporting the tip amounts and tax withholdings accurately on your paystubs? If the employer is deducting and keeping the money for itself under the pretense of claiming it as tax withholdings, that would be called “conversion”, a fancy legal term for theft.

  • vintanas nightmare

    i work in Heart of the house and 2 weeks ago we were informed that we would start getting 1%tip from food sales from foh employees ie.servers and bartenders,personally i believe there is a much bigger scam going on from our owners with this(not sure what just yet)i would prefer to recieve the tip if any from the person that believes i deserve it such as server comming back to me and asking to make something on the fly because she forgot to add something on and the meal is already in route to its table. or whatever the case may be,i totaly think its wrong making it mandatory to tip HOH.

  • kc

    I have a prep manager who is on salary, who doesn’t have any contact with customers and is getting tips from our tip pool. More importantly; He gets more tips than any other employee because of the number of hrs he is contracted for his salary is higher than any other employee. Is this legal under California law?

  • Bob B

    If your employer puts a service charge of 19% on every check etc – and they take 1% to pay for credit card payments or some bs is that illegal on there part? I Mean as a customer your thinking that you are giving a 19% gratuity, but really only 18% is going to that person and the dam HOUSE IS TAKING 1 % – TELL ME I HAVE A CASE ??
    Funny to cause they just changed this – where now the full 19% does go to the employee etc – but what about all that past monies????? Do I have a case to sue? For myself? And what about other employees???? YEARS AND YEARS OF THEM STEALING- ????

    • Nada Surf

      You don’t because it is a service charge not a gratuity.

  • Jane

    My job has been doing not so great things including stealing tips. They take 50% for them self and the other half goes to the servers and out of that half 6% goes to the hostesses.
    I don’t know what to do or who to report it to, I would like to remain anonymous for the fear of loosing my job.

  • Tiffany

    Actually, the law states that the tip is the sole property of the person who it was given to or left for… so nobody can take your tip, even if there is a policy of tip pooling, because it violates the law. It makes no sense to do a tip pooling anyway, since when people leave tips, they are meant for their server or the person they are given to only, usually based on how well the service was. So, if, say somebody is a very good server and receives large tips, and then somebody else gets small tips because they do a bad job serving, then the person who is doing a good job would lose money in tips because they would be split evenly. The only way tip pooling would be legal is if all the employees participating in the tip pool did so voluntarily. If anybody doesn;t want to participate, they do not have to, even if it is company policy. Read up on your laws.

  • patti

    My question is does the empoyer count the “tips”? Or is the employee with the supervision of a mamager/supervisor the one who count the tips? Where would I might the law regarding this?

  • alysa

    so is there somewhere i can file for my tips since my boss didnt give the to me? she would seperate them every six months!! and on top of that there was only about 5 to 6 of us working for her and she would only give us like 40bucks every 6 months when we would get at least 10 bucks a day in our tip jar mind you this is a round table any ideas to help get my money she owes me? let me know please

  • schacha

    Under a new policy implemented by management in a restaurant, in order to save labor hours- if we are cut (asked to get off the clock) and a table that we have been taken care of has food on the table, we are to transfer the table to another server but the tip belongs to us. If there is no food on the table the tip belongs to the server that the table was transfered to. The problem is the management is collecting the tip and on multiple occasions I have not received the tip. I have discussed this with management and have not received any action. I have been told that this is the policy and if I do not follow this I will be written up which may lead to my termination. I am documenting the days in which this occurs. Any advice.

  • schacha

    Under a new policy implemented by management in a restaurant, in order to save labor hours- if we are cut (asked to get off the clock) and a table that we have been taken care of has food on the table, we are to transfer the table to another server but the tip belongs to us. If there is no food on the table the tip belongs to the server that the table was transfered to. The problem is the management is collecting the tip and on multiple occasions I have not received the tip. I have discussed this with management and have not received any action. I have been told that this is the policy and if I do not follow this I will be written up which may lead to my termination. I am documenting the days in which this occurs. Any advice.

  • Mary Lanphear

    A cashier is taking tip money for our service in the buffet are they allowed to pocket the money?

  • Skye

    This answer might be some-where in comments but, thought this would be faster.
    In Norfolk VA. All tips paid by credit/debit the owner keeps. The owner also, makes possible employees/all employess sign a document given permission that the owner can do so. (My common sense and the law doesnt always align.) To me possible employees basicaly have to sign this document if they want to be hired.Is that threatening in itself or am I over thinking this already”? Also, is having employees sign this document even legal on its own? Lastly, a co-owner is also given portions of the tip pool with-in this business. From my readings thats illegal also.
    If anyone can give me information where I can get printed city laws stating this act or all acts are illegal I’d appreciate it. If you have a comment I’m all ears but, having legal documents to prove this is what I would prefer.
    Laters

    • steven

      there is an old rule of thumb. any law/document cannot break another law of a higher realm.
      A city ordinance cannot break, contradict a county ordinance. a county law/ordinance cannot break, contradict a State law/ordinance. a State law/ordinance cannot break, contradict a Federal law/ordinance.
      example.
      it is legal in the federal law, therefore the state law, therefore the county law, therefore the city law to put up a for sale sign in front of your property. however a homeowners association says you can’t and you signed a paper saying you understand that you can’t. the document is worthless on that point because it violates a higher ‘law of the land’ if you will. A document can only enforce or acknowledge a lawful ‘option’ (for instance the size of an individual for sale sign) it cannot create or demand an illegal one which contradict an existing law of a higher realm, as in giving up your right to post a sign on your own property.

  • Malibuss6598

    I reccently got a new job at a familiar restaurant at the airport. The bartenders are to report how much tips they get on a daily basis and i have been told that their wages are reduced based on how much tips are. Is this legal and if not what can they do about it?

  • Aaron Frick

    Hi quick question can an employer who has their own work station in a restaurant have the tips left on the tables in the work station they are working in

    • rui bagina facebook

      Well, I think so. If the employer was serving the guests in that station in his own restaurant, during the guests full meal, Yes the employer, in my opinion it would also be fair for he to get his tips. He worked for it.

  • http://pulse.yahoo.com/_IYBSUMNCIEWKBTBV5A6VIRHROQ kim

    I’m a sushiman and I’m a sushi restaurant corportion owner,because business is slow,I substitute a sushiman to  work at the sushibar.Can I receive or  share  the tips.

  • George

    Years and years pass and nothing is done to stop employers from stealing the tips customers are presenting us workers in the service industry. Judges continue taking bribes to misinterpret our labor laws so that business owners can steal the billions of dollar customers are tipping their employees.

    I have been speaking out against employer tip theft for over 10 years. How long must I wait to see justice? Does anyone care?

    Our hourly wages have systemaically been reduced to nothing through efforts by the federal reserve to promote a steady rate of inflation. Every year our wages become worth less and less as the dollar is intentionally devalued by our Federal Reserve. Our manufacturing jobs have went overseas and many of the jobs we are left with force us to beg for tips just to get by. On top of that, the tips we have been reduced to beg for are being stolen from us by our employers.

    Is this the way we want our nation to treat it’s people?

    When an employee receives a tip, it should be respected as his private property. If customers want others to have a tip, they should tip each one individually. This way there is no confusion over how much in tips each is entitled to. This way, our laws can actually protect the tips an employee has received.

    When tips are errantly viewed as the property of those employees whom customers might have intended to tip, there is no way to substantiate who the tips belong to and what amount actually belongs to them. There is no way to protect an employee to the tips he has been given when we have no way to substantiate how much each one is entitled to.

    If you tip an employee it should be regarded as his and his alone. This way we know exactly how much he is entitled to and his tips can be protected. If tips are erratnly regarded as that which belongs to all those the customers might have intended to tip, there is no way to substantiate who is entitled to the tip and how much  each is entitled to.

    Simply put, if we refuse to regard tips as the property of the individual who was physically presented the tip, the customer’s tip cannot be protected from the greedy hands of business owners. Business owners can take tips away from an employee when tips are errantly viewed as that which does not belong to the individual who was given the tip.

    In order to insure that the recipient of your tip is protected to your tip, tips must be regarded as the property of the individual you’ve chosen to tip, not the property of some vague and ambibuous group of workers whom you may have intended to tip. The vagueness and ambiguity of such a system  makes it impossible to properly protect those workers you;ve intended to tip.  

    How can a waitress know who you want your tip shared with? How can a judge know who you want your tip shared with? How can anyone know exactly how you want your tip divided up?

    The only way to view tips is to view them as the property of the individual who was physically  presented the tip. Any other view of tips leaves the ownership of those tips an impossible task to sort out.

    For those of you who want your tip shared, just give your tip to the owner of the business. it’s going to end up in his pocket your way. You see, since you refuse to designate who your tip is for, the employer is going to use it to pay his employees who don’t normally receive tips. This way he can use your tips to save himself the expense of paying his employees higher wages. Those of you who want your tip shared are going to have your tip stolen because there is no way to substantiate who you wanted your tip shared among and how much you wanted them each to have. Since you have neglected to inform anyone of how you want your tips divided up, and since you don’t want the individual who you phyically presented your tip to lay claim to the tip you gave, the owner is free to use your tips to reduce his staffing costs. The more employees he shares your tip with, the lower his staffing costs will be. The lower his staffing costs are, the more the owner can put in his own pocket.

    What’s to stop an empoyer from using your tips to simply pay all his employees when you refuse to designate who your tip is intended for and when you refuse to accept the idea that your tip belongs to the employee who you gave it to? All you are doing when you suggest that your tip should be shared is allowing the owner of the business to take it away from the employee whom it was presented. After it’s taken away, who else can prove it belongs to them? If no other employees can prove that they are entitled to a specific amount of your tip, then their employer is free to use it in a manner most beneficial to the employer.

    While you may not mind the idea of the business owner helping himself to your tip, there are people in this country that don’t want business owners stealing their tips. Your rights mean nothing if it needlessly infirnges on the rights of others. If you want your tips shared, share them yourself. You can’t expect other people to give up
    their rights simply because you”re to lazy and uncaring to designate who your tip belongs to. If you want business owners to pocket your tip, then give your tip to the owner, not one of his employees. For customers who don’t want business owners stealing their tips, they should be able to designate who their tip belongs to simply by physically presenting their tip to the person whom they want to tip.

    You see, what many people suggest is that a customers shouldn’t be able to designate who his tip is intended for. Those who say tips should be shared are preventing customers from desiganting who their tip belongs to. Those who say designation of who a tip belongs to should be reliant on who the tips was physically presented to are in no way interfering with the rights of those customer’s who want their tip shared.

    When tips are properly viewed as the property of the individual, customers who want their tips shared can have their way simply by dividing up their tips and presenting it to each employee they want to tip. The proper way to view tips does not interfere with their rights. However, when tips are errantly viewed as property which should be shared among all those whom the customer intended to tip, those customers who want to tip workers of their choosing are unable to do so.

    It’s about personal rights. Every customers should have the right to decide, for themselves who their tip belongs to. When tips are errantly regarded as that which is not intended for the individual whom it was given, customers are deprived their right to determine who their tips belongs to. When customers are prevented from determining who their tip belongs to, business owners are free to steal the money for themselves.

    That’s why business owners are paying off judges to rule that tips do not belong to the individual who physically was presented a tip. That’s why judges are making up lies and suggesting that all customers want their tips shared. That’s why judges are looking right into the eyes of a waitress and telling her that her tips do not belong to her.

    • steven

      make tipping illegal

  • George

    I’ve worked for tips for over 33 years and not one year of those 33 did I get to keep what customers actually gave me. I was forced to share my tips with workers, who for some reason, never contributed enough tips to the pool so that I could get back what I had put in. I have always worked in places where the tips are pooled and divided equally among all similar type workers. The problem is, while I always lost money from this system, I was told it’s legal for my employer to treat my tips this way.

    I have searched for over 15 years for a law that says this treatment of my tips is legal, however, I have not found one law that indicates that this treatment of my tips is legal. While both my state labor laws and federal labor laws mention tip pools, not one word suggests that it is legal for my employer to take my tips from me so that others can have an equal share of my tips.

    Federal laws state,

    29 USC section 203(m)
    Nothing in this subsection shall be construed to prohibit the pooling of tips among employees who customarily and regularly receive tips. Is this supposed to be the law that says my employer can take part of my tips and give them to other employees?

    Both tips and tip pools are defined under federal regulations. CFR 531.52 defines tips while CFR 531.54 defines tip pools. So do these regulations explain that my employer can take part of my tips away  from me and share them with other workers?Here are the regulations. If you see anything that suggests that my employer is allowed to steal my tips from me so that he can share part of my tips with other workers, please point it out to me.

    § 531.52 General characteristics of “tips.”
    A tip is a sum presented by a customer as a gift or gratuity in recognition of some service performed for him. It is to be distinguished from payment of a charge, if any, made for the service. Whether a tip is to be given, and its amount, are matters determined solely by the customer, and generally he has the right to determine who shall be the recipient of his gratuity. In the absence of an agreement to the contrary between the recipient and a third party, a tip becomes the property of the person in recognition of whose service it is presented by the customer. Only tips actually received by an employee as money belonging to him which he may use as he chooses free of any control by the employer, may be counted in determining whether he is a “tipped employee” within the meaning of the Act and in applying the provisions of section 3(m) which govern wage credits for tips.

    § 531.54 Tip pooling.
    Where employees practice tip splitting, as where waiters give a portion of their tips to the busboys, both the amounts retained by the waiters and those given the busboys are considered tips of the individuals who retain them, in applying the provisions of section 3(m) and 3(t). Similarly, where an accounting is made to an employer for his information only or in furtherance of a pooling arrangement whereby the employer redistributes the tips to the employees upon some basis to which they have mutually agreed among themselves, the amounts received and retained by each individual as his own are counted as his tips for purposes of the Act.

    Here is the thing. According to federal regulations, federal laws are stating that nothing is to prohibit me from pooling “money belonging to me which I may use as I choose free of any control of the employe.”

    According to federal regulations nothing is to prohibit where I and other employees “mutually agree on the basis by which our tips will be redistributed through a tip pool.”

    My point is, while the regulations in no way suggest that my emplyer may take my tips away from me so that he can share them equally with other employees, the regulations DO explain that I can use my tips however I choose free of any control of the employer. The regulations DO explain that I can mutually agree on the basis by which my tips will be redistributed through a tip pool.

    Again, If there is something here that I am missing, please point it out to me. Federal laws, in conjunction with the regualtions which define the terms used by the law,
    totally contradict the idea that it is legal for my employer to take my tips away from me so he can use them to equalize the tip incomes of my co-workers and I.

    • http://www.openinterns.com/ Rachelisallen

      HI George…………….

      I agree with your thought.Thank you for your sharing.

    • Tiffany

      I think that the law is trying to say that while tip pooling is legal, it can only be done if all the people participating in the tip pool do so voluntarily, or else those who do not wish to do a tip pooling can simply keep their tips and those who want to do a tip pooling can do so with the other workers who want to tip pool.

  • Robert

    We are rolling out a pooled tip system which will have all tips on the staffs pay check.  
     
    In a system where all credit card tips are on the employee’s paycheck how are cash tips distributed?  
     
    It is my understanding in California all cash tips must be distributed within a couple of days.
     
     Does the pooling system exempt this? 
     
    Meaning, can cash tips also be distributed on a paycheck? Or does a separate system need to be place for the cash tips?

  • George

    So Who Can Participate in the Tip Pool?
    Here is where things get tricky because the courts seems to be all over the place.

    And here is when corruption on a federal level bleeds over to corruption on a state level.

    California labor code does not even mention tip pools. How can we even discuss tip pools without knowing what tip pools are?

    Federal regulations define tip pools in great detail.

    CFR 531.54 defines tip pooling as,

    “Where employees practice tip splitting”

    “Where the waiters give a portion of their tips to the busbly”

    “Where an accounting is given to the employer”

    “Where pooled tips are redistributed to the employees upon some basis which they have mutually agreed among themselves”

    To better understand what “tip pooling” actually is, it is important to understand what tips are.

    Federal regulations again go into great detail in defining what tips are.
    CFR 531.52 explains, among other things, that under federal law, tips are that which is received as money belonging to an employee which “he may use as he chooses free of any control of the employer”.

    While Califoria law addresses gratuities, Federal laws address tips. Therefore it is incorrect to suggest that Calfifornia laws concern themselves with tip pools because California Labor Laws concern themselves with gratuities, rather than tips.

    Now back to the question at hand.

    Who can participate in the tip pool?

    Since California Labor Laws are silent on tip pools, we must turn to federal laws and regultions.

    Before we can understand who can participate in a tip pool we should fist find out whether or not tip pooling is something certain people can participate in.

    Again, federal regulations define tip pooling was where the waiter’s give a portion of “THEIR” tips to the busboy.

    This definition of tip pooling seem to suggest that since tips are refered to as the waiter’s property, only the waiters should be determining who can participate in their pool.

    Federal regulations go on to define tip pooling as where employees practice tip pooling. This definition seems to imply that tip pooling is something certain types of employees do rather than something certain types of employees may participate in.

    Federal regulations go on to state that tip pooling is where an accounting is given to the employer. Again, tip poolijg is not defined as something certain types of employee may participate in, in fact, this definition of tip pooling seems to clarify that tip pooling is where employees determine who will receive a share of tips and what amount they will recieve from the pool. An accounting, as refered to in CFR 531.54, is where someone determines matters like who is receiving tips from the pool and how much each is receiving.

    The regulation goes on to state that the “accounting” which is given to the employer is in furtherance of a tip pool whereby the employer redistributes the tips to the employees upon some basis by which they have “mutually agreed” among themselves.

    So, according to federal regulations, tip pooling is where tips are pooled among those who have mutually agreed on the basis by which tips will be pooled.

    Clearly tip pooling is not something certain types of employees may participate in. Instead, tip pooling is defined under federal regulations as something certain types of employees may practice. What this practice encompasses is determining such matters such as who will share in tips and what amount they will receive. The point I am making is, federal laws seem to indicate that tip pooling is the governing of tips.

    Federal laws do not define tips as something certain types of employees are eligible to participate in, but rather, something cetain types of employee cannot be prohibited from doing. What federal laws state is that Nothing in this section shall be construed to prohibit an employee who customarily and regularly receives tips from governing and thus pooling his tips.

    The problem is, while federal regulations are clear on this issue, federal judges are ruling that employers are not prohibited from requiring tip pooling. That’s why the California judges are ruling that employers are not prohibited from requiring the pooling of tips.

    While federal laws state clearly that nothing is to prohibit the pooling of tips among employees who customarily and regularly receive tips, judges are totally ignoring the fact that “the pooling of tips” is defined under federal regulations as the governing of tips by an employee who customarily and regurly receives tips which federal laws cannot be construed to prohibit.

    I guess federal judges are getting those free dinners too.

  • George

    I would like to now address how the same kind of corruption is happening on a federal level.

    Just as California has laws which seem to protect tips as the property of the employee who was given a tip, federal laws also seem to protect tips in a similar manner

    The problem is, while federel and most state laws appear to protect tips, our courts just can’t seem to interpret them in a way that actually protects workers to the tips they have been given.

    For instance, while federal laws state that nothing in this section shall be construed to prohibit the pooling of tips among employees who customarily and regularly receive tips, this law is being interpretted by the courts as a law allowing employers to pool the customer’s tip among who-ever he wants to share tips among.

    While at first glance, most people would probably think this law is attempting to insure that an employee who customarily and regularly receive tip will not be prohibited from pooling the customer’s tip, the courts have twisted this law into a law insuring that employers willl not be prohibited from pooling the customer’s tip.

    What is comes down to is, who is authorized to govern the customer’s tip in such a manner?

    Who are you authorizing to govern your tips when you tip?

    Do you want the employee to govern and thus enjoy your tip or do you want employer’s to govern and thus enjoy your tip.

    Just like Califfornia’s judges, federal judges seem to want busines owners governing and thus enjoying, spending and benefitting themselves to the tips we customers present workers in the service industry.

    They say that the way to a man’s heart is through his stomach. I guess if you give em enough free dinners, even judges will interpret the law anyway you want them to, even if it’s illegal. Oh, that’s right, it’s only illegal if a judges says it’s illegal. My Bad….

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    John..

  • Aaphrodite

    I am a waitress at a restaurant and recently my employer raised the amount we are required to tip out to our coworkers who are in the chain of service. On most occasions, our credit card tips (charged tips) are a greater amount than the tips we are actually walking out with after the tip out. Because our charged tips have been entered into our POS system, we cannot clock out without claiming at least our charged tips. Most days I am REQUIRED by my employer to claim more than I am making, and in turn more money is taken out of my paycheck. Basically, I am getting taxed on money that I am not making. This does NOT sound right to me, but so far I have not been able to find any state law or statue that prohibits it, or even any information on it, really. Can anyone please help me? Because of the raised tip out, I am making a significantly less amount than I was between the tips I’m actually walking with and my heavily-taxed paychecks. I have been paying all my bills late for the past two months and can barely afford to pay for the upcoming spring semester. Please help!

    • Nicetamecha

      You keep track of the money you tip out and report it on your taxes as an expense. You should end up getting more money back. I keep a notebook log of all the money I tip out. Date, amount and to who and what position they are.

  • George

    Answer this question.

    Why is there a law in California stating that No employer shall take all or any part of the tips presented by customers?

    Wouldn’t such acts by an employer be stealing?
    Whouldn’t such acts by an employer be illegal? Isn’t stealing someone’s private property a crime in this country?

    What California Labor Code 351 proves is that our judicial system has become so corrupt that our elected officials must write additional laws in their attempt to stop blatant corruption.

    When our legislators have to enact special laws explaining that it is illegal for someone to steal someone else’s private property, it should be evident that there is a huge problem in our justice system.

    If our justice system had been working properly, states like California wouldn’t have had to enact a special law to prevent employers from stealing the tips customers present, would they?

    The fact that California has a law explaining that employers are prohibitted from taking the tips customers present workers in the service industry is proof that the courts are so corrupt that a special law had to be passed to insure that judges would not continue ignoring such crimes by employers.

    The result, however, is, employers are free to steal the customer’s private property. No laws can get in the way of our judicial system, They can and will twist any law you throw at them.

    Just think about it, Why do we have to write a special law to prevent business owners from stealing the customer’s private property, his tip? Shouldn’t this problem have been settled years ago when employers first attempted to steal the tips customers were presenting their worker?

    This whole situation just cries out, please someone straighten these judges out before they destroy our country? There are leash laws for dogs, do we need them for judges too?

  • Max

    My 19yr old and 17 yr old have recently started working part time (12 hrs weekly average each ) in a small restaurant and they sit the customer at the table and take their drink order, they also bring food/drinks to the table and clean up the table after the customer leaves.
    The owner takes the food orders only, yet he keeps 100% of the tips left by customers, he does not share a single penny of the tips with any employees. The owner claims he can allocate the tips to who he wants to because he is also waiting the table.
    They tried to explain to the owner that he is wrong about tip sharing, yet he insists he is not and that other employees in the past have made the same mistake about tips.
    My kids are now looking at the best way to resolve this matter.

  • http://www.sanantonioemploymentlawblog.com Tom Crane

    Nice post, Gene.

  • jen

    how do you guys feel about this one and can you offer me somewhere to look for laws concerning it becuase i’ve been scouring the internet for a week and cant find what i need to feel that i have a concrete case. i worked for a day spa for a year in washington state. i was paid an hourly wage and all tips went to my employer to be kept track of and also to be taxed for us as employees to make tax time easier on us (so they told us). the week we would get paid 3 things would happen. monday a tip information sheet would be printed and given to each employee telling them how much tips they made in that pay period. (say mine was 247) wedneseday we would get our hour print up to be looked over, signed and returned. friday we would get paid. when i compared my tip print outs to the corresponding check stubs i noticed differences. tip print out said $247. on my check stub in the “net tips allocated” line it said $197, which was added to my hourly wage and then all of it taxed. and there was no tip pooling here. in addition when i called the local L&I office they told me that washington does not consider tips to be part of an employees income or wages so they shouldnt have been adding to my wages which they did on my W-2. it is not stated anywhere on my W-2 that i made any tips. which according to IRS is illegal becuase federally tips ARE considered to be part of an employees income or wages earned….. anyone got advice or comments?

  • jason

    George you should say to waitress this tip belong to you that way all the tip belong to her or him.

    • George

      Jason, that’s not the way it works. It doesn’t matter what I say to the waiter or even the owner of the business. By ruling of our mighty justice system, tips belong to whom-ever the courts decide, regardless of what I, the customer, might say or do. You see, when a waitress goes into court and tells the judge that I said my tip belongs to her, the judge will call her a liar and refuse to accept my testimony. This is what happened in a well known case in California, The case was Leighton v. Old Heidelberg. Look it up for yourself.

      When Ms. Leighton stated that her employer’s tip pool was depriving her the use of her tips, the court responded by stating “The arguement is unsound, first, because it is based on the erroneous assumption that the entire tip left by the patron is the waitress’s personal property”. .Second, if more than one employee, for example a waitress and a busboy, directly serve the table of a patron, the gratuity is left for the “employees” within the meaning of section 351″.

      You see it doesn’t matter what the customer’s intent is, According to the ruling handed down in Leighton, California’s laws have determined who the customer’s tip belongs to. According to California judges, the customer’s tip belongs to whom-eve the court’s determine it belongs to.

      Indeed the only evidence which either side attempted to introduce was a declaration by the appellant’s attorney. He testified to having conducted a poll of approximately 30 restaurant customers all of whom said that when they left a tip it was solely for the waiter or waitress who had served them and not for the busboy or other restaurant employees. This evidence was ruled inadmissible.

  • jason

    In Washington State min wage is $8.55 + tip

  • jason

    lots of times customers provide tips saying great food or good service. we don’t know who tip belong to and other customers asked if we share and we yes. we don’t know the minds of the customers so should we put two or three jars on the counter with names on them is this only way we really solved the problem when we hire we do tell everyone about tip sharing and its up them to decide if they like to work or not (we do explain why we share)

  • Jason K.

    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?????

  • Jennifer

    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.

  • George

    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.

  • jason

    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)

  • George

    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”?

  • George

    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.

  • George

    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?

  • George

    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.

  • George

    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.

  • http://www.LOEL.com Eugene Lee

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

  • George

    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?

  • George

    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?

  • http://www.LOEL.com Eugene Lee

    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.

  • George

    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?

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