UnderCover Waitress: Massachusetts Laws

Wednesday, April 24, 2013

Massachusetts Laws

Ask the Waitress!

This is from Massachusetts:
Is it legal in MA to require waitstaff to tip out a certain percentage to bartenders, busses and food runners?   Management requires we let them see our sales before we cash out!  Also, at this restaurant we are required to claim 14% of our sales as tips, if not its a write up, sometimes we don't make that. We tip out 4% of sales to support staff, in order to claim 14% of sales we need an average of 18%, that doesn't always happen. Can you help me find the answers?
 I'll do my best to help you find the answers. :-)

Tip Outs

"Tip out" is restaurant jargon for a waitress paying a percentage of her sales or tips to other restaurant staff. This is legal, and the legal language is "valid tip pool." On the federal level, a valid tip pool is one in which FOH workers, and FOH only, get tip outs. Bartenders, bussers, and food runners are FOH, so this is legal. (If you have to tip out a dishwasher or cook, it is against federal law.)

This from Mass. Attorney General Martha Coakley:
Under Mass. General Laws, c.149, s.152A, an employer can require service employees to pool their tips only with other service employees, service bartenders, or wait staff. Total proceeds of a tip or service charge contained in a bill must be remitted only to wait staff employees or service bartenders in proportion to the service provided by those employees. Under no circumstances may management employees or owners receive any portion of their employees' tips.
Incidentally, notice that in the state of Massachusetts, managers may not dip their hands into the tip till. This is relevant to my last two posts, Managers Taking Tips and Managers Taking Tables.

Sales

Theoretically, a tip out is a percentage of your tips earned. I have seen so many waitresses skim off the top of their tip outs that I understand why owners and managers require a percentage of sales, not tips. It sucks, because if you have a bad night you end up tipping our a higher percentage of your tips (make sense?)

I know of no law regulating what percentage wait staff may be required to tip out. Coakley's language above, "Total proceeds of a tip or service charge contained in a bill must be remitted only to wait staff employees or service bartenders in proportion to the service provided by those employees," seems to allow managers to decide what is fair. I think it would have to be an especially obvious problem, such as the bartender sitting in the back room all night but then receiving a tip out for making drinks, which he didn't make, to argue that the tip out was not in proportion to service rendered.

Anyway, it is legal for your employer to say "four percent of sales go to other FOH employees." It is legal for them to look at your sales to ensure that your tip out is the correct amount.

Claiming Tips and Tip Credits

It is illegal to require employees to claim more money than they made. This is where your employer is guilty of wage theft.

In most states, Massachusetts included, employers may take a tip credit. The Mass. minimum wage is $8 per hour, but for tipped employees it is only $2.63. You may be paid like a tipped employee if you make at least $20 per month in tips.

HOWEVER: Your tips and wage must equal minimum wage! If not, your employer owes you more money.

In the state of Mass., the tip credit is as much as $5.37 per hour.
$8 - $2.63 = $5.37.

You have to have made minimum wage AFTER paying tip outs, not before. So, if you just make $8 per hour including tips, and then have to tip out other employees, guess what? Your employer owes you money OR is guilty of wage theft.

That is why you are being required to lie about your tips earned. Your employer is breaking the law and is guilty of wage theft.

Write Ups

Okay, that is just nasty. It is also a rather obvious threat. So, you make sixteen percent on average on a specific shift. You must pretend you earned an additional two percent, or you get written up as if you did something wrong. Write ups are for things you do wrong that you should know better, like passive-aggressively sighing at customers or ringing in food wrong all night.

The attitude is "if you didn't make at least eighteen percent, you are not a good waitress/waiter and shouldn't be working here, anyway." We all know if does not work that way. A slow shift and Springs1 in your section, you are going to be paying taxes on money you didn't make.

Or maybe you have a bad night because of you. It happens. Every human being in any job will have some bad times. I've worked with managers who sucked most of the time and they didn't have their pay docked. Amazing how long some people last in jobs they are no good at.

Whistleblowing

Be careful. As an at will employee, you may be fired for any reason or no reason (as long as its not a protected reason, such as discrimination.) If you complain to a manager about wage theft, you may find yourself off of the schedule.

Mass. does have a no retaliation law; you may find it towards the bottom of this web page. If you contact the Mass. Department of Labor with a complaint, you are afforded protection against retaliation. If you complain to the Department of Labor, then lose your job, you would have legal complaint re: retaliation.

Good luck.

Please remember: I'm not a lawyer, I'm just a stupid waitress! ;-) None of this is legal advice. When people ask me questions, I research the answers to the best of my ability and include my resources in my answers. Thank you.

6 comments :

  1. "A slow shift and Springs1 in your section, you are going to be paying taxes on money you didn't make."

    That's only true if you gave bad service and you know it! Quit LYING!

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  2. I know my situation may be atypical, but I'm going to vouch for managers taking a cut of tips in certain situations. Keep in mind that this may not apply to many, many restaurant situations. I absolutely don't think that managers, especially salaried, should take tips for helping out on the floor. And especially if the hourly wage they are making tops those in the FOH.

    In the situation I'm in, I recently recieved a promotion to Assistant Manager, after five years of FOH experience at the fairly small (40 employees or so), independently owned pub I work at. I took the job for the experience that I'll (someday, maybe) be able to put on my resume and having a more taxable income so my husband and I can buy a house, as he is a bartender and the majority of his income is tips.

    On average, I make $7-$10 less an hour than I did when I was only waiting tables. I work 50-60 hours a week and on any given night do the job of manager, expediter, bar back, and whatever else is needed.

    Our FOH pools within the 2 or 3 servers, tipping out the bar and host, as well as the kitchen when our sales reach a certain amount for the dinner hour. Although not legally required to do this, all of our fairly small staff agrees that it's only fair that if the FOH is working harder, therefore earning more money, the BOH should be compensated for that as well.

    The only staff that is not tipped out is the MOD, regardless of how much time on the floor they spend.

    I'll admit that it's tough when I reconcile the drawers at the end of the night and tip people out (our managers divvy up the pool and cash out the drawers)to realize that my 12 hours are equal to someone else's six, regardless of how competent a server they are or how much I helped them.

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  3. Holy Christ, I hope someone bans Springs1 soon. It'd be nice to have a real discussion with people that have meaningful, relevant things to say about this topic.

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    Replies
    1. Can't ban IP addresses in blogger; however, I thought I had her banned via another means. May have expired but I agree.

      Delete
    2. TMC
      "It'd be nice to have a real discussion with people that have meaningful, relevant things to say about this topic."

      May I ask what do I not say that isn't relevant? It's all meaningful, because that's how I think, with my *HEART*, which you obviously don't, do you?


      Delete
  4. You don't work at a restaurant. End of story.

    ReplyDelete