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Daily Archives: August 22, 2009

California courts allows kitchen staff to participate in a tip pool

Contradicting California law which prohibits the following employees from partcipating in a mandatory tip pool program, i.e. “employees who do not provide direct table service and who do not share in the tip pool include dishwashers, cooks, and chefs, except in restaurants where the chefs prepare the food at the patron’s table”,

http://www.dir.ca.gov/dlse/faq_tipsandgratutities.htm

the Second Appellate District of the California Court of Appeals has allowed the inclusion of kitchen staff to participate in a mandatory tip pool.

United States: California Appellate Court Protects Employers Who Allow Tips For Dishwashers

09 April 2009
Article by Matthew D. Marca and Guissu N. Raafat

On March 27, 2009, inBrad Etheridge v. Reins International California, Inc ., No. B205005, the Second Appellate District of the California Court of Appeal approved a mandatory tip-pooling policy that allows participation of kitchen staff. The court rejected all wage and hour claims by a class of waiters arguing that kitchen staff cannot participate in a tip pool. Given the ruling in Etheridge, California restaurant employers with mandatory tip pooling policies would be well advised to review, and if necessary, amend their policies.

Read the rest of the article here:

 http://www.mondaq.com/article.asp?articleid=77692

Oregon (through the courts) already allows inclusion of the kitchen staff in the tip pool because it doesn’t allow the tip credit (server wage there is above the Federal minimum wage). Additionally, there is nothing in Oregon law that addresses tips or tip pooling. I’ll let the Portland Restaurant workers Association take over:

“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”.

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

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