According to so-called experts on tips and tip pools, waiters can be required to share their tips with other workers. The question I have is, what portion of his tips is a waiter legally entitled to keep as his own?
I mean, if there is some law that says it's legal for an employer to take tips away from the waiter and share them with other workers, shouldn't this law also explain both how much the waiter is suppose to keep and how much each of the other employees is supposed to keep.
The truth of the matter is, there are no laws explaining how tips should be divided up. What the law does state is that the pooling of tips which is legal is where employees have mutually agreed upon the basis by which their tips will be redistributed through a tip pool. In fact federal laws specifically explain that nothing is to prevent employees who customarily and regularly receive tips from being able to mutually agree on the basis by which their tips will be redistributed through a tip pool.
What many people do not understand is that both tips and tip pools have been defined under federal law.
TIPS have been defined as "money belong to the employee which he may use as he chooses free of any control of the employer. CFR 531.52
TIP POOLING has been defined as where employees practice tip splitting, as where the waiters give a portion of "THEIR" tips to the busboys, or, where an accounting is given to the employer for his inormation only or in furtherance of a tip pooling arrangement whereby the employer redistributes the tips to the employee upon some basis to which they have mutually agreed among themselves. CFR 531.52
From these definitions, provided under the Code of Federal Regulations, it is quite clear that tip pools are to be strictly voluntary. Did you know that for many years, up until around 1975, the U.S. Department of Labor was saying that tip pools had to be voluntary? Apparently, some time after that point, the courts ruled that employers could require tip pooling. The courts suggested that since customers don't want the waiter to keep the entire tip, restaurants must be allowed to require that the waiters share their tips with other workers. One such case was Leighton v. Old Heidelberg.
Many other so-called experts cite federal law as the origin of allowing employers to require tip pooling. Federal laws state that nothing in this subsection shall be constured is to prohibit the pooling of tips among employees who customarily and regularly receive tips. 29 USC section 203(m)
Many would like us believe that this law is stating that employers cannot be prohibited from pooling all tips among those employees who qualify as "employees who customarily and regularly receive tips". However, what such interpretation ends up doing is it ends up placing the U.S. Department of Labor in the awkward position of having to determine who qualifies as an employee who customarily and regularly receives tips.
You see, buisness owner have figured out that if they force their front line workers to share their tips with other workers who are not in a position to earn tips, they can greatly reduce their staffing costs and benefit themselves to the tips their workers are receiving. As a result, businesses have hounded the U.S. Deparment of labor for approval of various types of workers being classified as "employees who customarily and regularly recieve tips".
Busboys, bartenders, waiters, food runners and hostess are just a few of the types of employees the restaurant industry has convinced the DOL should be considered "employees who customarily and regularly receive tips.
The courts, on the other hand have expanded the scope of "employees who customarily and regularly receive tips" to include just about everyone working in the restaurant industry. In Cumbie v. Woody Woo the Ninth Circuit ruled that restaurants could share tips with any workers as long as the employer didn't pay the employees less than minimum wage. Apparently, the only time tip pools are allegedly limited to "employees who customarily and regularly receive tips" is when the employer is taking part of the tips to pay his employee's minimum wage obligations.
However, the truth of the matter is,
Federal laws are not suggesting that tip pools are limited to certain types of employees.
What such would suggest is that federal laws define who the customer's tip belongs to. That is uttery ridiculous. Federal laws would not attempt to enumerate who the customers tip can legally be shared among. We are talking about private property here. This whole idea that federal laws govern tip pools is totally crap. Federal laws would not atttempt to enumerate who the customer tip belongs to. In fact, federal regulations explicitely explain that, concerning tips, it is the customers sole right to determine such matters. CFR 531.52.
The truth of the matter is, federal laws are stating that nothing in this subsection shall be construed to prohibit an employee who customarily and regulalry receives tips for pooling his tips any way he pleases.
To understand this simple concept all one need do is read how "tips" and "the pooling of tips" are defined under fedreal regualtions. When federal laws state that nothing in this subsection shall be construed to prohibit the pooling of tips among employees who customarily and regularly receive tips, what is being overlooked is the fact that federal regulations define the pooling of tips as something that cannot be limited to certain types of employees. as something that an employer cannot require and as something only an employee who customarily and regularly receives tips is authorized to govern.
Tip pooling is the right of an individual to make use of his property by sharing a portion of his tips with other employees who mutually agree to such an arrangement. Tip pooling must be voluntary and uncoerced. Those who tell you differently are either incorrect or lying.
Tips belong to the individual who was given the tip. If tips are errantly regarded as belonging to others, there becomes no evidence to establish that the tips belong to any of them. Physical evidence can substantiate that tips belong to the waiter. There is no evidence to support the idea that the customer wanted his tip shared, Likewise, there is no evidence to substantiate how the tips should be shared.
Mutual agreement is defined as consensual among all parties.
It is a violation of federal law to interpret federal law in a manner that prohibits the pooling of tips where such pooling is consensual among all parties.