Businesses can't collect tips to share among workers

Tip Credit is a federal law that allows employers to take a 'credit' against the minimum wage, and pay lower wages to employees who earn tips.

Master Driver
Posts: 2615
Joined: Tue Apr 24, 2012 4:38 pm
Location: Wa
Where do you work?:
Formally employed by a Papa Johns Franchise in Washington state.
User Type:
Pizza Delivery Driver
Car you drive:
One with an internal combustion engine
PostPosted: Thu Feb 25, 2016 3:49 pm
9th Circuit: Businesses can't collect tips to share among workers, court says
http://www.chicagotribune.com/business/ ... story.html
By: Tribune news services [url=tips@chicagotribune.com]Contact Reporter[/url]
February 23, 2016 8:47PM

Businesses cannot collect tips given to waiters, casino dealers or other service employees to share with support staff such as dishwashers even if the tipped employees are receiving minimum wage, a federal appeals court ruled Tuesday.

The 2-1 decision by the 9th U.S. Circuit Court of Appeals upheld a 2011 U.S. Labor Department rule.

The 9th Circuit said the rule was reasonable and consistent with Congress' goal of ensuring tips stay with employees who receive them.

The court overturned district courts in Nevada and Oregon. The 9th Circuit ruling would largely apply to states that require workers to get the state minimum wage on top of any tips. Seven states fall into that category, according to the labor department's Wage and Hour Division: Alaska, California, Minnesota, Montana, Nevada, Oregon and Washington.

It was not immediately clear what the impact would be on back-end workers in those states.

The Labor Department has previously banned employers who use tips to fulfill their hourly minimum wage requirements from distributing those tips to employees who don't regularly receive tips.

"The premise is the tip is never the employer's," said Reuel Schiller, a labor law professor at the University of California, Hastings in San Francisco. "The employer doesn't have the power to take that from the waiter and give it to a dishwasher because it's not the employer's money."

Supporters of the rule would say the employer should pay the dishwasher higher wages or charge customers to pay the dishwasher instead of having other staff subsidize the dishwasher's pay, Schiller said.

The 9th Circuit considered two lawsuits in its ruling — one brought on behalf of plaintiffs including restaurant and lodging associations in Washington, Oregon and Alaska and the other by two casino dealers against Wynn Las Vegas.

The casino dealers said Wynn was taking their tips to share with other employees. The restaurant and lodging associations said the federal rule would prevent back-end staff from sharing in tips.

Paul DeCamp, an attorney for the restaurant and lodging associations, said there was a decent chance one of the plaintiffs would appeal.

"The real world impact of this sort of regulation that the Department of Labor has issued is important for people to understand," DeCamp said. "The people who are hurt most by the 9th Circuit ruling are the people in the kitchen, the cooks, the dishwashers, the prep cooks and so on."

Michael Weaver, a spokesman for Wynn Resorts, said Wynn was studying the ruling to decide its next steps.

Associated Press
Copyright © 2016, Chicago Tribune


This is a win in my book. Supposedly one of the plaintiffs will appeal. My understanding is that it will be the the restaurant association that will appeal, and that appeal will be the to US Supreme Court, which might take years to be heard.
Don't expect others to fight your Battles
User avatar
Master Driver
Posts: 990
Joined: Sat Nov 12, 2011 3:41 am

User Type:
Pizza Delivery Driver
Car you drive:
Olds 2000
PostPosted: Thu Feb 25, 2016 6:58 pm
Darn it you beat me to it Elric. I just found this article

Master Driver
Posts: 2615
Joined: Tue Apr 24, 2012 4:38 pm
Location: Wa
Where do you work?:
Formally employed by a Papa Johns Franchise in Washington state.
User Type:
Pizza Delivery Driver
Car you drive:
One with an internal combustion engine
PostPosted: Thu Feb 25, 2016 8:10 pm
Racket_Man wrote:Darn it you beat me to it Elric. I just found this article

Good!! /s You've beaten me to a few articles.

Are you aware of my post in r/legaladvice? I'll be updating that post sometime int he next few days.

https://www.reddit.com/r/legaladvice/co ... ty_become/
Don't expect others to fight your Battles
User avatar
Master Driver
Posts: 990
Joined: Sat Nov 12, 2011 3:41 am

User Type:
Pizza Delivery Driver
Car you drive:
Olds 2000
PostPosted: Fri Feb 26, 2016 3:36 am
No I did not know about the reddit post but it was a good read

Similar to the situation that happened to me in this post
http://gregspages.com/discussion/viewtopic.php?f=24&t=1799&p=6115#p6115

Yes I did get to keep the tip BUT it could have easily gone the other way if not for my GM.

CSR/Phones
Posts: 13
Joined: Tue May 02, 2017 9:24 am
Location: PA / FL
Where do you work?:
Owner/Operator of private Restaurant Consulting Firm
User Type:
Other
Car you drive:
Stick Shift Compact
PostPosted: Tue May 02, 2017 9:43 am
I actually disagree with this.

Employers are obligated by law to pay employees minimum wage. If an employer pays a tipped employee less than minimum wage, then the employer must make up the difference if that employee does not receive tips that cover at least the minimum wage. Employers should be allowed to control the tips so that it can account for keeping themselves compliant. With that said, I do not feel there is anything wrong with an employer taking and controlling tips from all inside servers, having a second random employee verify the tips with the manager, dividing them up evenly, then adding a payroll annotation of their tips received that day, then dispersing the cash to the servers. If the law requires restaurants to be compliant, the restaurant needs to be able to be in compliance. Or the servers just take their own cash tips home everyday and forcing the employer to pay the server the minimum wage when infact the server received tips well over the minimum wage.

On another note, I honestly do not see an issue with servers sharing their tips with the kitchen staff. Everyone in a restaurant is part of a team. I have worked for restaurants that pays all their staff, kitchen and servers, a little under minimum wage, and then shares the tips with the staff. However, if a customer was insistent on their particular server receiving their complete tip, the restaurant would happily accept that request and the server would be able to keep that tip and it would not be part of the tip pool.

I feel one of the biggest problems in the restaurant industry with employees is they are at the job just for them. They don't feel they are part of a team. This is poor management. Its the management and owner's role to set the standard upon hire and ongoing that every hourly position is just as important and that they are part of a team. Working in a restaurant is about teamwork.

Master Driver
Posts: 2615
Joined: Tue Apr 24, 2012 4:38 pm
Location: Wa
Where do you work?:
Formally employed by a Papa Johns Franchise in Washington state.
User Type:
Pizza Delivery Driver
Car you drive:
One with an internal combustion engine
PostPosted: Wed May 03, 2017 1:18 am
thejax wrote:I actually disagree with this.



Luckily for tipped employees your disagreement with the 9th Circuit is meaningless. Let's see how you justify your disagreement

thejax wrote:Employers are obligated by law to pay employees minimum wage.


Yes... that is what the FLSA and the numerous court rulings have determined.

thejax wrote:If an employer pays a tipped employee less than minimum wage, then the employer must make up the difference if that employee does not receive tips that cover at least the minimum wage.


Yes... that is what the FLSA and the numerous court rulings have determined.

thejax wrote: Employers should be allowed to control the tips so that it can account for keeping themselves compliant.


This really has not bearing on the topic, but let's see how you continue.


thejax wrote: With that said, I do not feel there is anything wrong with an employer taking and controlling tips from all inside servers, having a second random employee verify the tips with the manager, dividing them up evenly, then adding a payroll annotation of their tips received that day, then dispersing the cash to the servers.


Neither do I. But that is not what the article is discussing. What you are talking about is tip sharing/tip pooling and is not the direct topic of the article.


thejax wrote: If the law requires restaurants to be compliant, the restaurant needs to be able to be in compliance.


Nonsensical statement.

thejax wrote:Or the servers just take their own cash tips home everyday and forcing the employer to pay the server the minimum wage when infact the server received tips well over the minimum wage.


You are introducing issues that are mutually exclusive of what the article discusses and what the 9th Circuity has ruled on.


thejax wrote:On another note, I honestly do not see an issue with servers sharing their tips with the kitchen staff.


Neither do I, when that sharing is free of compulsion/coercion.


thejax wrote:Everyone in a restaurant is part of a team.


Ahh... the catch-all phrase used by managers and employers that they use as their excuse to them to steal from tipped employees. The catch-all phrase where the employer pits the tipped employees against the non-tipped employees.

thejax wrote: I have worked for restaurants that pays all their staff, kitchen and servers, a little under minimum wage, and then shares the tips with the staff.


And this is important... why?

thejax wrote:However, if a customer was insistent on their particular server receiving their complete tip, the restaurant would happily accept that request and the server would be able to keep that tip and it would not be part of the tip pool.


Or the employer could obey the law and deem that tips received are the property of the tipped employee or those tipped employees that are legally participating in a tip pool. Instead of the employer assuming ownership of the customer's property (the gratuity) and disbursing it to non-tipped employees, which is what you are suggesting.

thejax wrote:I feel one of the biggest problems in the restaurant industry with employees


Whoa... stop right there. There are different classifications of employees, when you (manager/owner) remove those different classifications from the narrative, you do so disingenuously. You (manager/owner)get to decide whether to classify the employees are tipped or non-tipped, and then you get to obey they law. Yo do not get to make up the law to suit your purposes. I understand that you want to be able to do this, but you don't.

thejax wrote:I feel one of the biggest problems in the restaurant industry with employees is they are at the job just for them.


Yes, they are there just for themselves. Every single employee that does not participate in profit sharing is there for themselves.


thejax wrote: They don't feel they are part of a team.


Ahh.. again the use of the catch-all word "team". One can be a part of a team and still be an individual. That is why there are laws, to protect the individual.


thejax wrote:This is poor management.


Nonsensical statement and has nothing to do with your previous statement.


thejax wrote:Its the management and owner's role to set the standard upon hire and ongoing that every hourly position is just as important and that they are part of a team. Working in a restaurant is about teamwork.


I appreciate (/s) how you dismiss the individual for the team. Good on you for subsuming your interestes for the owner's.
Don't expect others to fight your Battles

CSR/Phones
Posts: 13
Joined: Tue May 02, 2017 9:24 am
Location: PA / FL
Where do you work?:
Owner/Operator of private Restaurant Consulting Firm
User Type:
Other
Car you drive:
Stick Shift Compact
PostPosted: Wed May 03, 2017 7:49 am
Elric92... You seem very arrogant, selfish, and egotistic.

You are the kind of delivery driver I can't wait to identify in a store I am working in and happy to pull them aside and let them go. And I am just being honest.

You come into a workplace expecting Me Me Me, bringing threats of legal action when things don't go your way, and expect every restaurant shift to go in your favor. Thats not how it works.

You applied for that job. You were interviewed for that job. You were informed of the wage and expectations for that job, and then expected to come in on time and do your job. Your coworkers, managers, owners, etc do not want to hear your back talk about how you don't feel like washing dishes or a customer stiffed you the tip or the manager is doing a piss poor job.

The question I have for you is, is it important to you to come in and do a great job while you make your money or is it more important to you to make your money because your employer should be happy you are there and you feel entitled? You just seem to have a lot of animosity and hate. Its sad. I am sorry your management team poor but you shouldn't have such a piss poor attitude. I don't understand why you always feel you need to be right or correct people. Have a discussion, not start a war. I am here to help, not argue with people.

Master Driver
Posts: 2615
Joined: Tue Apr 24, 2012 4:38 pm
Location: Wa
Where do you work?:
Formally employed by a Papa Johns Franchise in Washington state.
User Type:
Pizza Delivery Driver
Car you drive:
One with an internal combustion engine
PostPosted: Wed May 03, 2017 10:07 pm
thejax wrote:Elric92... You seem very arrogant, selfish, and egotistic.


I am sorry you feel that way. I have responded to your thoughts and in my professional opinion (does that term sound familiar to you?) your thoughts are exactly what I expect from a manager/owner that does not give a shift about their employees, except those that are willing to subsume their individuality for the group.


thejax wrote:You are the kind of delivery driver I can't wait to identify in a store I am working in and happy to pull them aside and let them go. And I am just being honest.


Great, I am only being honest myself.

thejax wrote:You come into a workplace expecting Me Me Me,


If you knew me, you would know that is not the case. But you don't know me. You've drawn a conclusion based upon a few minutes worth of reading words I've conveyed on this forum.

thejax wrote:bringing threats of legal action when things don't go your way,


I don't make threats of legal action. Legal actions have happened when an employer violates rights afforded me, or other employees, that the US (or state) government has enacted to protect me/them.

thejax wrote:and expect every restaurant shift to go in your favor.


Again, you don't know me. If you did know me you'd know that is not me.

thejax wrote:Thats not how it works.


Nonsensical statement


thejax wrote:You applied for that job. You were interviewed for that job. You were informed of the wage and expectations for that job, and then expected to come in on time and do your job. Your coworkers, managers, owners, etc do not want to hear your back talk about how you don't feel like washing dishes or a customer stiffed you the tip or the manager is doing a piss poor job.


And... what does this have to do with the price of tea in china?

thejax wrote:The question I have for you is, is it important to you to come in and do a great job while you make your money or is it more important to you to make your money because your employer should be happy you are there and you feel entitled?


Loaded question. Not even worth answering.

thejax wrote: You just seem to have a lot of animosity and hate. Its sad. I am sorry your management team poor but you shouldn't have such a piss poor attitude. I don't understand why you always feel you need to be right or correct people. Have a discussion, not start a war. I am here to help, not argue with people.


No, you're not here to help. You may think you're trying to help, but you're not. This forum is for delivery drivers, not for managers/owners. Coming here and trying to preach to us on how terrible employees, and people, we are will get you nowhere fast.

And just so we are clear here... on this forum I am the manager. I can let the authority go to my head, I can neglect your individual rights for the benefit of the team (which seems to be your way of doing things), or I can just terminate you because I don't like you(which seems to be your way of doing things) or I can let you dig your own hole and show the rest of the forum membership just how good an employee you are. Your choice.
Don't expect others to fight your Battles

CSR/Phones
Posts: 13
Joined: Tue May 02, 2017 9:24 am
Location: PA / FL
Where do you work?:
Owner/Operator of private Restaurant Consulting Firm
User Type:
Other
Car you drive:
Stick Shift Compact
PostPosted: Wed May 03, 2017 11:12 pm
People with a selfish "Employee" state of mind will never understand what owners and upper management go through to make the big picture happen.

I think I realized what happened here. Because I am not a delivery driver, right now, you are incredibly rude and arrogant towards me. You enjoy making me feel unwelcome. It doesn't matter that I was a delivery driver for many years, or developed delivery systems for restaurants, or that I always fight for the delivery drivers where ever I work. The only thing that matters to you is that I am not a delivery driver now, so no matter how many years of experience I have under my belt in many aspects of restaurant delivery (not just being a driver), you will never accept me. So where is the problem? Is the problem me because I elected to be here or is the problem you because you are very disrespectful and ignorant?

The last store I worked in, all the delivery drivers got together and threw me a surprise going away party (completely unexpected) because of how I changed things and helped them. They were very appreciative for what I have done for them and the store. I don't know you but you don't know me either.

At the end of the day, years after this conversation has been long forgotten, I will still be working in the restaurant industry trying to make conditions better for delivery drivers and busting my ass doing it. Nothing has ever been handed to me. I have made what I am from long hard work and sacrifices to prove to the most stubborn people I have the skills to make things happen. Meanwhile, years after this conversation, you will still be, just a delivery driver. Let that sink in.

So while you sit here and read my post with your egotistical attitude, remember that what you say doesn't phase me. It doesn't make me angry and it doesn't ruin my day. I go to bed every night knowing I have saved REAL JOBS that an owner would of cut if it wasn't for me. I have helped drivers be better at their jobs by teaching them skills. I have raised wages for drivers. What have you ever accomplished for a large team? Have you ever made a difference? Are you well liked where you work? Do people you haven't worked with in 10 years track you down and send you Christmas cards?

Paint a jackass on my back and label me an a$$hole but the only one acting like that is you.

Thanks and bless~

Closing Driver
Posts: 534
Joined: Mon Jun 02, 2014 1:41 pm

Where do you work?:
Papa John's
User Type:
Pizza Delivery Driver
Car you drive:
Toyota Camry
PostPosted: Wed May 03, 2017 11:46 pm
First of all, thejax, YOU are being a dick.

thejax wrote:You come into a workplace expecting Me Me Me, bringing threats of legal action when things don't go your way, and expect every restaurant shift to go in your favor. Thats not how it works.


No, he is not. The law says certain things. You can disagree all you want, but if you break the law, you should be held accountable.

thejax wrote:You applied for that job. You were interviewed for that job. You were informed of the wage and expectations for that job, and then expected to come in on time and do your job. Your coworkers, managers, owners, etc do not want to hear your back talk about how you don't feel like washing dishes or a customer stiffed you the tip or the manager is doing a piss poor job.


Yes, we applied for, interviewed for, informed, etc. This is immaterial to an employer violating the law and screwing the employee over. Have you ever heard of the word "statutory" when applied to laws? It means that, even if both people involved in a crime (criminal and victim) are ok with it, it is still illegal and actionable. Most of the lawsuits that happen are because of things that are statutory.

Also, at what point has anyone here said anything about washing dishes or getting stiffed? No one. As a matter of fact, this has absolutely nothing to do with this post, nor ANYTHING said in this topic. This topic is about tips being shared amongst people, plain and simple. As for manager doing a piss poor job, I've done the job (up to a GM level) and have no problems at all telling managers they are doing something wrong.

thejax wrote:The question I have for you is, is it important to you to come in and do a great job while you make your money or is it more important to you to make your money because your employer should be happy you are there and you feel entitled?


It is important to everyone that they get paid accurately for the work that they do. I personally do not want to work at a place where I am taken advantage of...and if my employer is deliberately screwing me to save himself some money, that is pretty much the definition of "taken advantage of".

thejax wrote:You just seem to have a lot of animosity and hate.


Or maybe after doing this kind of thing (helping people realize how the law protects them from assholes like you) he is sick of seeing people like you defend the system that routinely steals millions, if not billions, of dollars from people who are just trying to make a living.

thejax wrote: I don't understand why you always feel you need to be right or correct people.


Because this site was created as a place for drivers to learn how the law protects them? Therefore when people like you come in with flawed or incorrect information, the record needs to be set straight.

thejax wrote: I am here to help, not argue with people


What help have you given? So far, I see one post where you and another idiot have come up with some completely illegal, bullshit idea and ask us to sign off on, even going so far as to state that you don't want to hear if it is legal or not. THEN you come in and bluster, then insult one of the people that is MAJORLY responsible for change for the employees in LOTS of stores (elric started and finished various lawsuits that changed conditions for the better) and expect him and others to just roll over for you because you have a shitty opinion?

thejax wrote:People with a selfish "Employee" state of mind will never understand what owners and upper management go through to make the big picture happen


So, it's selfish to expect to be paid fairly for work done? It's selfish to have to follow rules, when your employer gets to break them?

thejax wrote:I think I realized what happened here. Because I am not a delivery driver, right now, you are incredibly rude and arrogant towards me


The only rude/arrogant I saw was in the other post about your stupid idea. The only rude/arrogant I saw in this topic was after YOU started dishing it out...it has nothing to do with your job title.

thejax wrote:It doesn't matter that I was a delivery driver for many years, or developed delivery systems for restaurants, or that I always fight for the delivery drivers where ever I work. The only thing that matters to you is that I am not a delivery driver now, so no matter how many years of experience I have under my belt in many aspects of restaurant delivery (not just being a driver), you will never accept me.


This is hilarious. I am former management. Yet I am accepted here because I don't think it is right for employers to violate the law. Period.

thejax wrote: So where is the problem? Is the problem me because I elected to be here or is the problem you because you are very disrespectful and ignorant?


Where was the first disrespectful statement? Oh yeah here:

thejax wrote:Elric92... You seem very arrogant, selfish, and egotistic.


As for ignorant:

thejax wrote: Employers should be allowed to control the tips so that it can account for keeping themselves compliant.


Ignorant, meaning the lacking of knowledge, is why I chose this. First of all, the law, with regards to what you are talking about here, only says that the EMPLOYEE must CLAIM all tips for tax purposes. At what point does the employer have anything here to be "in compliance" about? If an employee says "I made $32 in tips tonight" then the restaurant should note that and move on. It is NOT the employer's responsibility to keep anything and account for it...it is the EMPLOYEE'S responsibility to claim any and all tips.

thejax wrote:The last store I worked in, all the delivery drivers got together and threw me a surprise going away party (completely unexpected) because of how I changed things and helped them. They were very appreciative for what I have done for them and the store. I don't know you but you don't know me either


So? You may have done a lot to "help", but your statements here show that you have very little knowledge of the laws. THAT is where the problem lies...well that and your willful ignorance and the belief that you are always right.

thejax wrote:Nothing has ever been handed to me.


Do you think any of us had anything handed to us? Greg, the man who started this site, spent about a DECADE crusading for companies to stop screwing employees and advocating for driver's rights. Elric worked hand in hand with him for a long time doing the same. Both of them have put in thousands of unpaid hours doing this.

thejax wrote:I have made what I am from long hard work and sacrifices to prove to the most stubborn people I have the skills to make things happen.


Skills do not mean you understand the laws and how they apply to this profession.

thejax wrote: Meanwhile, years after this conversation, you will still be, just a delivery driver. Let that sink in.


Here is a prime example of the fuckwad attitude that is pissing us off.

thejax wrote: What have you ever accomplished for a large team?


I can't speak 100% for elric, but I can say this. His lawsuits have increased mileage reimbursement and effective wages for hundreds, if not thousands, of people who work/worked at the franchise he was at.

Based on the things *I* learned here, I tried to start a lawsuit that would do the same at my franchise (which owned over 100 stores, is in the top 5 largest dominos franchises in the US) and the only reason I say tried is because I was about 2 months too late and someone had already beaten me to it.

thejax wrote:Have you ever made a difference?


Again, I cannot answer for Elric, beyond saying I'm pretty sure he did. Personally, yes I have. I stopped wage theft at my old store and am in the process of educating all the new people at my current store.

thejax wrote:Are you well liked where you work?


Absolutely.

thejax wrote:Do people you haven't worked with in 10 years track you down and send you Christmas cards?


No, because people who know me know how I feel about things like this. However, I do still have regular contact with people I haven't worked with in almost 20 years.

thejax wrote:Paint a jackass on my back and label me an a$$hole but the only one acting like that is you.


Again, refer to earlier where I said the first disrespectful comment came from you.
Next

Return to Tip Credit / Pay Cuts

Who is online

Users browsing this forum: No registered users and 1 guest

cron