Question:
I own a restaurant. In the morning I am there by myself. No busser. No other servers. I wait tables and receive tips. At lunch a server shows up. They wait 10 tables. I wait five. They keep their tips from their tables and I keep mine. Is this OK?
– Wallace Parker, Owner, Eagle Cafe, San Francisco
Answer:
Rising wages, especially in states or municipalities with no tip credit, staffing challenges and thinning margins mean that, more than ever, owners and managers are not relying solely on tipped employees to carry the full load of the front of house. Managers and owners are increasingly devoting time to serving, bartending or performing other customarily tipped functions as part of their routines, as you are.
In pooled environments, the law is clear. The answer is no. In your state of California, the code states, “No employer or agent shall collect, take, or receive any gratuity or a part thereof that is paid, given to, or left for an employee by a patron, or deduct any amount from wages due an employee on account of a gratuity, or require an employee to credit the amount, or any part thereof, of a gratuity against and as a part of the wages due the employee from the employer. Every gratuity is hereby declared to be the sole property of the employee or employees to whom it was paid, given, or left for.” Though this question comes up often, both from employees and managers, managers simply may not take part in the tip pool. Even if they work really hard. Even if their salary is low. Even if they are the best server in the restaurant.
Where it gets tricky is that because the tips are the property of the employee, when you are the only one scheduled, there is no one to share with. The legal experts at Avvo have said that “Owners and managers may never take part in a tip pool. An owner or manager may, however, accept direct tips that they earn from serving customers. This is relevant in the case of a small restaurant, where an owner might also provide table service.”
Tip regulations are frequently changing and, especially in California, there are fairly strict regulations that tend to favor the employee. My advice for all managers and owners is to just steer clear of messing with tips, even when given to you directly, because owners and managers would not be considered customarily tipped employees. Make sure you are adequately staffed, put all tips in the pool and don’t touch it otherwise.
Local regulations vary, so, as always, consult with your restaurant association and attorney.
More on management tipping policies here.