UnderCover Waitress: State Specific Questions About Tip Outs and Tip Pools

Wednesday, January 1, 2014

State Specific Questions About Tip Outs and Tip Pools

Happy New Year to all! Hope your 2014 is starting off with a bang and a great start. I am starting my new year with a little research about the thorn in all of our sides: the ins and outs of tip pooling laws.

It's a complicated area of the law precisely because of how difficult it is to spell out and mandate every possible situation in each and every individual restaurant. I think that lawmakers have shied away from this area partly because it's complicated or possibly because they simply don't care.

This came in recently from a fellow restaurant worker in the Cincinnati area:
Happy New Year,
Hello, I recently just quit a quaint bistro and the reason was NO BUSINESS and second I for some reason had to tip pool with the KITCHEN-no way. I have a feeling that this is illegal and only FOH may get my percentage. My question is as follows: Where can I find a list of Tip out rules and procedures for the states of Kentucky and Ohio?
Happy new year to you as well. It is against federal law to require waitresses and waiters to share tips with the kitchen. Anyone with a question about the legality of tipping out the BOH must read:

Against Federal Law

and

Department of Labor Fact Sheet #15

I would love it if the state governments would make their tip rules and regulations easier to find! :-) However, here is what I found for you:

Kentucky

This page of Frequently Asked Questions applies to all employees in the state of Kentucky. While it does not cover tipped employees specifically, it is still relevant to tipped employees. For example, in Kentucky you are entitled to a ten minute, paid rest break for every four hours that you work.

FAQ Kentucky

and this page tries to explain the state of Kentucky's tip credit:

Kentucky Tipped Employee Minimum Wage. 

According to the Nolo Press, Federal law and most states allow restaurant owners to require servers to participate in valid tip pools. However, this state of Kentucky does not allow employers to require participation in tip pools. Therefore, if you work as a waitress or a waiter in the state of Kentucky, it seems you may legally refuse to tip out other FOH staff.

Nolo Press regarding Kentucky.

The state of Kentucky does allow voluntary tip pooling. I can imagine how that plays out: three servers are asked to tip out a bartender. Whoever refuses has trouble getting her drink orders filled. Or there could be a guilt trip. For example, the employer won't pay the busser more than minimum wage. The employer makes it the responsibility of the servers to compensate the busser.

Ohio

In the state of Ohio, employers may only take a 50% tip credit. That means that the tipped minimum wage in Ohio must be at least half of regular minimum wage.

In Ohio, you may be required to participate in a valid tip pool. A valid tip pool is one in which only tipped employees participate in. (That is to say, FOH.) The state of Ohio allows employers to require servers to put a portion of their tips into a pool to be divided among other FOH staff.

 The following are two Nolo Press articles you may find of interest:

Nolo Press regarding Ohio

Nolo Press on Tips. 

Best of luck to you, and thank you for Asking the Waitress!



4 comments :

  1. This whole whether or not to tip out situation is very aggravating. As a manager of a restaurant, I've been at a cross roads with the tip out. When I was a server, I was always told we were required to tip out a certain percentage to both back and front of the house employees. I agree that it was unfair to force me to give a portion of my hard earned money to someone else, especially if I felt they didn't do anything for me. But isn't it also strange that servers only think that it's only the front that makes the restaurant successful? I've worked with other servers who were never at their tables, always short-cut their side work and then complain about everything no matter how much money they made. I've also worked in the back as a cook and can recognize the unfairness in giving money to the kitchen if they really are just standing around doing nothing. But doesn't a great dining out experience require a smooth running restaurant with great food AND great service? I have never forced my employees to tip out to anyone on either side but have given them a choice. If they choose to tip out they only need to tell me how much so that it can be accounted for in their reported tips, otherwise I don't ask or say anything. Is it illegal for me to do that?

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  2. The rules should be much more clear cut, and even across the board as opposed to state by state.

    Happy New Year to you!

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    1. Happy New Year, William! Thanks for stopping by. Yeah, it gets pretty confusing down here... ;-)

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