So You Want To Be A Waiter

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From Tip20! – The right to do your own server accounting…

An interesting “Dear Tip20! question was posed to the blog. I’m going to reproduce the question and answer and then give my own viewpoint:

Tip20! User Question:

“Hi,
I’m a server at a breakfast place and some really shady stuff has been going on! I’ve always worked in places where I have my own bank and we have POS systems. This place is not like that! They have a cash register and we hand right tickets, ring it in to an ancient register, staple it and turn it into the kitchen. Anyhow, my concern is all tickets are cashed out as cash.. even when that ticket is paid for on credit card. So me and my fellow servers started noticing we weren’t making as much on the day’s we have a particular hostess aka asst. manager! Therefore, I started making copies of every ticket I printed out for that day! At the end of the day I look at my end of the day checkout to see how much sales, togo’s, and housed items I have! Well, management does not like this and has stopped letting me look at my checkout slip! My question is, Isn’t it my right to see MY checkout? At other places i’ve work I actually had to print my own checkout and sign it! very curious what you think…”

Dear “What are my rights”,

As always, I must state that I am not a lawyer and am not qualified to give legal advice…

It does seem obvious that there are shenanigans going on at your work place. But whether you have “rights” or not is a fuzzy grey area.

Not knowing your exact work environment – and/or owner involvement it seems that you are in a pickle. If the Managers have final say in everything that happens in the restaurant, then in my opinion you are screwed. There is a conspiracy of some sort that you are fighting against and are unlikely to win. You really have no “rights” to speak of, as you are employed at their whim. If you feel you are being stolen from, then it seems only fair to yourself to confront the issue with management. Is the owner a player in this? If so, I would definitely let them know that you feel you are being taken advantage of. Often the problem with smaller mom-and-pop operations is that you can end up with uncomfortable situations and inappropriate work conditions.

I believe you should be able to review your slips and keep good accounting. But if they don’t let you, I believe that is their prerogative. having said that, I would not work very long under those conditions personally. Is there anyone in the company that you can go to, to air your concerns?

Tip20!

I will also say that I’m not a lawyer. I’m also going to assume that the writer is in the US.

One thing that Tip20! doesn’t address is the fact that, according to US current labor law interpretation by the Department of Labor, tips are considered the sole property of the employee and must be allowed to retain all tips, with the exception of tip pooling to other “normally tipped employees”. This precludes tipouts to others not normally tipped, such as managers, kitchen employees, custodial employees, etc. – more about this in a moment.

In order to assure that you aren’t participating in a “tipout” that you didn’t agree to (a tipout to the hostess/assistant manager could be allowed as a tipout since the assistant manager is “technically” a hostess, which can be a tipped position), you should have the right to have access to your own daily sales report.

There are some wrinkles to what I’ve written above though.

First of all, there are states that don’t allow a tip credit, states that already mandate full minimum wage for all employees. Oregon is a such a state, as are California and Washington, all of which mandate a higher minimum wage than the Federal minimum wage for all employees. Here’s some insight about how Oregon treats tips:

Oregon law fails to address tips and tip pools and, therefore, BOLI does not enforce any standards regarding tips.  While the U.S. Department of Labor (DOL) establishes regulations regarding tips based on the federal Fair Labor Standards Act (FLSA), the DOL and the courts interpret the law differently.  Recent cases within the United States District Court for the District of Oregon have held that the FLSA does not regulate tips if the employer does not claim a tip credit (and Oregon prohibits employers taking a tip credit).  Employers are also free to make the tip pooling arrangements they dictate a condition of employment. As a result, even though the Department of Labor regulations grant restaurant workers control over their tips, those workers cannot currently assert those rights in Oregon courts.

They go on to describe the Federal standard quite succinctly:

Below are the standards set by the U.S. Department of Labor on the topic of tips.  Be aware, these interpretations are specific to DOL and the FLSA and are not meant to be confused for Oregon employment law.

Tips:

All tips that an employee receives are his or her property.  The law forbids any arrangement between the employer and the tipped employee whereby any part of the tip received becomes the property of the employer.

Tip Pools:

The requirement that an employee must retain all tips does not preclude a valid tip pooling or sharing arrangement among employees who customarily and regularly receive tips, such as waiters, waitresses, bellhops, counter personnel (who serve customers), busboys/girls and service bartenders.

Tip Pool Criteria:

  • consists of traditionally tipped employees: waiters, waitresses, servers, bartenders, counter personnel (who serve customers), busboys/girls, and hosts
  • cannot include owners or managers in the tip pool
  • cannot take more than a “customary and reasonable” amount of each employee’s tips (15% of tips or 2% of sales is customary and reasonable according to the Department of Labor)

When non-traditionally tipped employees are included in a tip pool, that is when the system has to be entirely voluntary—each employee can decide how much (if any) of her tips to share with anyone else.

Here is the whole blog page:

http://pdxrwa.org/category/know-your-rights-a-restaurant-workers-survival-guide/introduction/tip-pooling-tip-out/

This is the reason why kitchen employees in Oregon are tipped out in quite a few restaurants. In my state, tipping out kitchen employees wouldn’t be allowed because I live in a $2.13/hr state.

The other wrinkle is whole “hostess/assistant manager” thing. If she is acting as a hostess, then she falls under the “traditionally tipped” category and is entitled to a tipout if she is part of a tip pooling arrangement that everyone has agreed to.

What’s interesting is that the DoL used to have “interpretations” of the US Code that apply to tipped employees on their website. These no longer exist. It’s possible that, with certain court rulings in certain states like California, they no longer offer these “interpretations” because of uncertainty in some areas. Or they might just have revamped the web site.

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