In a huge development in the last couple of weeks, a change in federal law now permits California employers to include back of the house employees in tip pools. This week’s post is an update and a general discussion about issues facing restaurants, hotels, and other industries where tipping and gratuities are left for employees. This simple concept is surprisingly complex for employers. Here are five issues employers should understand about tips in California.
1) Who owns a tip?
California law is clear that voluntary tips left for an employee for goods sold or services performed belong to the employee, not the employer. Labor Code section 351 provides, “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…. Every gratuity is hereby declared to be the sole property of the employee or employees to whom it was paid, given, or left for.”
2) Is employer mandated tip pooling legal?
Yes. In the seminal 1990 case on tip-pooling, Leighton v. Old Heidelberg, Ltd., the court held that an employer’s practice of tip pooling among employees was not prohibited by section 351 because the employer did not “collect, take, or receive” any part of a gratuity left by a patron, and did not credit tips or deduct tip income from employee wages. The court relied upon the “industry practice” that 15% of the gratuity is tipped out to the busboy and 5% to the bartender, which was “a house rule and is with nearly all Restaurants.” However, owners, managers, or supervisors of the business cannot share in the tip pool. Employers need to be careful to exclude any employees who direct the work of other employees from tip pools, as lead shift supervisors, floor managers, and others who do not have the authority to hire or fire may still be considered a supervisor for tip pooling purposes.
There must be a reasonable relationship between tip pooling arrangements. The following examples of mandatory tip pooling percentages have been approved by a court, the DLSE or DOL:
- A policy in which 80 percent of tips were allocated to waiters, 15 percent to busboys and five percent to bartenders
- A policy in which cocktail service must give one percent of tips to bartender
- The Department of Labor responsible for enforcing Federal law has stated that a policy that requires servers to share 15 percent of their tips with other employees is presumptively reasonable
- A policy in which a server contributes 15 percent to a tip pool, and other employees in the chain of service receive a portion of these tips based on the amount of hours they worked
The following examples were tip pooling policies disapproved by courts or the DLSE and therefore employers cannot legally establish them:
- A policy providing 90 percent of tips to hostesses who spend only a small amount of time seating customers
- A policy requiring food server to share 10 percent of tips with floor managers
3) When do tip tips left on credit cards have to be paid, and can a deduction made for processing the credit card transaction?
If a patron leaves a tip on their credit card, the employer may not deduct any credit card processing fees from the tip left for the employee. Moreover, tips left using a credit card must be paid to employees no later than the next regular payday following the date the credit card payment was authorized. See Labor Code § 351.
4) Can California employers have back of the house employees share in a tip pool?
On March 23, 2018, the Consolidated Appropriations Act, 2018 signed by President Trump changed federal law on this issue and allows employers to share tips with back of the house employees. Therefore, as of March 24, 2018, California employers may include back of the house employees in any tip pooling arrangements. Prior to President Trump’s approval on the new law, this was not the case, as a Court in Oregon Restaurant and Lodging Association v. Perez, the Ninth Circuit Court of Appeals, which covers California, held in February 2016 that the Department of Labor’s regulations about who can participate in tip pools applies to states like California which do not permit tip credits. The DOL had issued regulations that under the FLSA a tip pool is only valid if it includes employees who “customarily and regularly” receive tips, such as waiters, waitresses, bellhops, counter personnel who service customers, bussers and service bartenders. According to the DOL past rule, a valid tip pool “may not include employees who do not customarily and regularly receive tips, such as dishwashers, cooks, chefs, and janitors.” The Plaintiffs in Oregon Restaurant filed a petition for review to the United State Supreme Court. Given the new law that took effect, the Supreme Court’s review of the case is not necessary.
While some states provide the employer with a “tip credit”, California law does not allow this. However, with the recent passage of the increase in California’s minimum wage, there is more discussion of examining whether a tip credit should be considered in California. However, current law does not allow employers to “credit” an employee’s tips towards the minimum wage requirement for each hour worked.
A service charge added to a customer’s bill is not a tip or gratuity and remains the property of the employer. Therefore, the employer may distribute the service charge to its employees, including back of the house employees as it wishes. However, if a service charge is distributed to employees, it is considered wages and effects the employee’s regular rate of pay for overtime purposes as discussed below.
5) Do tips change an employee’s regular rate of pay for overtime calculations?
No. Because tips are voluntarily left by customers to employees, tips do not increase an employee’s regular rate of pay used to calculate overtime rates.
However, if an employer implements mandatory service charges and shares these service charges with employees, the service charges must be considered wages for overtime and tax purposes. Therefore, the employee’s regular rate of pay for overtime purposes will be higher when mandatory service charges are distributed to the employees. To calculate an employee’s regular rate of pay, the employer must divide all compensation for the week by the total number of hours worked by the employee.
**Additional issue: Pay attention to other requirements under local ordinances regulating service charges.
For example, Santa Monica’s minimum wage ordinance requires employers to “distribute all Service Charges in their entirety to the Employee(s) who performed services for the customers from whom the Service Charges are collected.” Santa Monica Municipal Code § 4.62.040. “Service Charge” is defined as “any separately-designated amount charged and collected by an Employer from customers, that is for service by Employees, or is described in such a way that customers might reasonably believe that the amount is for those services or is otherwise to be paid or payable directly to Employees…under the term ‘service charge,’ ‘table charge,’ porterage charge,’ ‘automatic gratuity charge,’ ‘healthcare surcharge,’ ‘benefits surcharge,’ or similar language.” Santa Monica Municipal Code § 4.62.010(g).