Pooling and Sharing Tips

1. The U.S. Department of Labor’s position is that tip-pooling / tip-sharing arrangements are permissible as long as the employees sharing in the tips have somehow participated in serving the customers who left the tips. Courts cases regarding tip-sharing arrangements focus on whether the employee interacted with the customer, assisted in providing the customer with a pleasurable dining experience, and/or provided “direct table service” before or during the meal, while the customer was seated. It is a good practice to put the tip-sharing policy in writing and have everyone acknowledge it.
2. DOL regulation 29 C.F.R. § 531.54 – “Tip pooling. Where employees practice tip splitting, as where waiters give a portion of their tips to the busboys, both the amounts retained by the waiters and those given the busboys are considered tips of the individuals who retain them, in applying the provisions of sections [203(m)] and [203(t)]. Similarly, where an accounting is made to an employer for his information only or in furtherance of a pooling arrangement whereby the employer redistributes the tips to the employees upon some basis to which they have mutually agreed among themselves, the amounts received and retained by each individual as his own are counted as his tips for purposes of the Act.”
3. DOL Field Operations Handbook § 30d04: Tip pooling.
   1. The requirement that an employee must retain all tips does not preclude tip-splitting or pooling arrangements among employees who customarily and regularly receive tips. The following occupations have been recognized as falling within the eligible category:
      1. waiters
      2. bellhops
      3. counter personnel who serve customers
      4. busboys/girls (server helpers)
      5. service bartenders

      It is not required that all employees who share in tips must themselves receive tips from customers. The amounts retained by the employees who actually receive the tips, and those given to other pool participants are considered the tips of the individuals who retain them, in applying the provisions of sections [203(m)] and [203(t)].

   2. A valid tip-pooling arrangement cannot require employees who actually receive tips to contribute a greater percentage of their tips than is customary and reasonable. For enforcement purposes, Wage and Hour will not question contributions to a pool where the net amount of tips contribute (after return of any tips from the pool) does not exceed 15 percent of the employee’s tips. However, only those tips that are in excess of tips used for tip credit (e.g., where the maximum tip credit is taken, those in excess of 40 percent of the minimum wage) may be taken for a pool. If such requirements are met, it is not necessary that the pooling be voluntarily consented to by the employees involved (notwithstanding Reg. 531.54).
   3. Tipped employees may not be required to share their tips with employees who have not customarily and regularly participated in tip pooling arrangements. The following employee occupations would therefore not be eligible to participate:
      1. janitors
      2. dishwashers
      3. chefs or cooks
      4. laundry room attendants

      However, it does not appear that Congress … intended to prevent tipped employees from deciding, free from any coercion whatever …, what to do with their tips, including sharing them with whichever co-workers they please. Tips given to such co-workers as are listed in this subsection may not, however, be used as a tip credit.

   4. … In the case of host/hostesses, head waiters, or seater/greeters and other employees not referred to above, facts should be developed showing the practices regarding their sharing of tips in the locality and type of establishment involved.

    

4. Two DOL opinion letters address this issue:
   • Customer-greeting chefs are tipped employees: http://www.dol.gov/esa/whd/opinion/FLSA/2008/2008_12_19_18_FLSA.htm - note that this appears to present a slight conflict with FOH § 30d04(c)(3) (quoted above), but this opinion letter should be taken as controlling authority because DOL opinion letters carry at least the same advisory authority as a section of the Field Operations Handbook, the opinion letter is much more recent, and the emphasis on the “customer greeting” aspect of such a chef’s job makes it consisent with the kind of court rulings cited below
   • Barbacks are tipped employees: http://www.dol.gov/esa/whd/opinion/FLSA/2009/2009_01_15_12_FLSA.htm

    

5. Gratuities charged by an employer are not tips – see http://www.tipcompliance.com/polLearningCenter.cfm?doc_id=89 - “A gratuity is not considered tip income within the control of the regularly tipped employee. A gratuity is a charge that is directly added for services rendered as determined by management, e.g. adding an 18% gratuity for parties over 10 people. This amount is considered wages, and is within the control of the employer, not the employee. Employers may distribute a gratuity at their discretion.”
6. Chau v. Starbucks, 94 Cal.Rptr.3d 593 3 (Cal. Ct. App., 4th Dist., July 2, 2009) – Section 351 (the California tipped employee statute) does not contain any language prohibiting an employer from equitably dividing tips placed in a collective box among the employees who provided the service.
7. Budrow v. Dave & Busters of Calif., Inc., 90 Cal.Rptr.3d 239 (Cal. Ct. App., 2nd Dist., Mar. 2, 2009) – Bartenders who poured or mixed drinks that were brought to restaurant patrons at their tables could participate in tip pools established pursuant to statute making gratuities property of employees to whom they were paid, even if bartenders did not personally bring drinks to tables.
8. Hosts are tipped employees: Kilgore v. Outback Steakhouse of Florida, Inc., a/k/a FMI Restaurants, Inc., 160 F.3d 294 (6th Cir. 1998): “an employer must inform its employees of its intent to take a tip credit toward the employer’s minimum wage obligation.” Hosts at Outback are “engaged in an occupation in which [they] customarily and regularly receive[] . . . tips because they sufficiently interact with customers in an industry (restaurant) where undesignated tips are common.” “… one court has held that a tip pool that benefits a maitre d’ is permissible under the FLSA. In Dole v. Continental Cuisine, Inc., 751 F. Supp. 799 (E.D. Ark. 1990), the district court upheld a mandatory tip pool where servers tipped out solely to a maitre d’ who ‘receives no tips directly from customers’ and whose responsibilities included setting up the dining room, greeting and seating customers, serving the first drink to customers, and assisting servers in serving customers as needed.”
9. Etheridge v. Reins International, 91 Cal.Rptr.3d 816: The court explained that “[t]ip pools exist to minimize friction between employees and to enable the employer to manage the potential confusion about gratuities in a way that is fair to the employees.”
10. For tipped employees, it would not be legal to make deductions from tips toward a “breakage” fund. See the following two cases:
• Chisolm v. Gravitas Restaurant Ltd., 2008 WL 838760 (S.D. Tex. 2008) and
• Bursell v. Tommy’s Seafood Steakhouse, 2006 WL 3227334 (S.D. Tex. 2006).

For information on the tip credit and overtime pay for tipped employees, click here.