UnderCover Waitress: Utah Tip Laws

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Saturday, January 5, 2013

Utah Tip Laws

Ask the Waitress!

Received a question from a waitress working in Utah. The details include: 
We are required to tip out10% of our tips to the back of the house. The cooks and dishwashers each get an equal part of that %10. Is that legal? Also...when the assistant manager bartends and acts as manager on the same night, she requires a tip out on our liquor sales. Is that legal?
Reading the above carefully, it sounds as if there is additional tip out to the front of the house, and so food servers are tipping out more than ten percent on any given shift. 

The short answer to the first question is, No, this it is illegal for cooks and dishwashers to participate in tip pools in Utah. 

Here is the long answer:

Tipped Wages in Utah

The Department of Labor sets the tipped minimum wage at $2.13 per hour. The state of Utah considers this sufficient; therefore, Utah waitresses as of January 1, 2013 make a base wage of $2.13 per hour plus tips.

A tipped employee in Utah must make at least $30 per month in tips to be considered a tipped employee. Otherwise, the employer is required to pay the full minimum wage of $7.25 per hour.

If on any given shift, the tipped employee does not make enough in tips to bring home full minimum wage, the employer must make up the difference.




Tip pools are legal in Utah. That means that tipped employees may be required to share tips with other employees. According to the Utah Administrative Code,

D. All tips shall be retained by the employee receiving the tips. However, this requirement does not preclude tip pooling or sharing arrangements where an employer mandates that tips be pooled and divided or shared among those employees who customarily and regularly receive tips.
1. A bona fide tip pooling or sharing arrangement may include employees who customarily and regularly receive tips from customers directly or via a tip pooling or sharing arrangement.
2. Dishwashers, chefs, cooks, and janitors are not tipped employees and do not qualify for a tip credit nor are they eligible to participate in an employer mandated tip pooling or sharing arrangement.  [Emphasis mine.]
Bingo, it is illegal for back of house employees to get a tip out, and it is illegal for the employer in Utah to require waitresses to pony up ten percent of their tips to back of house employees.

Manager as Bartender

In the second question posed to me, we have an employee playing a dual role. Bartenders customarily receive tips, so they may legally participate in tip pooling arrangements.

The bad news is that in the state of Utah, I see no prohibition for managers receiving tip outs. Therefore, it seems that a manager who plays the role of bartender may require a tip out paid to her. This would also hold true if the manager played any other front of house role, such as hostess.

On a side note, I love the double-speak "tip pool." As anybody who "participates in tip pooling." The wording makes it sound like all tipped employees share. Nothing could be further from the truth. "Participating" in tip pooling means waitresses pay other front of house employees. I'm not saying it would be better to make everybody pool everything and divide equally, but I am saying the wording makes it sound as if that is what is happening. Waitresses pay other FOH employees. Say it.


Whistle Blowing

I recommend against complaining to a manager or owner about this arrangement. Internal whistle-blowing is when you complain to your boss. Guess what? You can be fired after internal whistle-blowing and be unable to claim retaliation, because your boss can fire you for any or no reason.

External whistle-blowing is when you complain to a government agency. Generally, I believe you are protected from retaliation if you complain to a government agency. If you wish to complain about the illegal tip pooling arrangement, you might consider contacting the Utah Department of Administrative Services. 

A. The Division may enforce compliance with the state minimum wage in the same manner as outlined in R610-3.
B. When more than one employee is affected by noncompliance of minimum wage requirements, the Division shall treat this alleged infraction of noncompliance as a class action.

You may have a class action lawsuit, as all of the waitresses and waiters are illegally required to pay ten percent of their tips to the back of the house.

PLEASE REMEMBER: I am not a lawyer, I'm just a stupid waitress. I research questions for other waitresses and waiters. Any mistakes on this blog are mine and mine alone, please do not depend upon me for legal advice which I can not and do not give. If you need legal advice, chat with a lawyer. In Utah, try the Utah Lawyer Referral Service.  You may be able to find an affordable or even free session to chat.

*Whew!* That was a mouthful.

Thanks for asking the waitress, and best of luck to you!
  

3 comments:

  1. It strikes me repeatedly how this is a line of work in which there are endless different ways for the employer to screw over the employee. And when you think you've heard the last of new ways... a server comes up with another version of it.

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  2. Can a owner legally accept tips? Also in Utah does the minimum wage law for waitress go by shift or pay period, if a waitress did not make enough one day in tips to equal at least minimum wage, but the next day made more then minimum wage is it calculated at the end of the pay period or done daily?

    ReplyDelete
    Replies
    1. Hi Rhonda,

      Technically, it is illegal for an owner to participate in the tip pool. There may be a gray area if the customer handed a tip to the owner for the owner.

      Tip credits may be calculated per pay period.

      Delete

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