UnderCover Waitress: More Tip Questions: Petit Larceny

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Saturday, August 23, 2014

More Tip Questions: Petit Larceny

Ask the Waitress!

First, I know I am behind on posting, and yes, there are questions in my email to which I have not yet responded. I do apologize to anyone who feels ignored; it is not your question, but rather, my schedule that keeps me away from the keyboard.

This is a new one, in many senses of the word. My jaw hit the keyboard when I read this plea for help from the state of New York:
My friend is a waitress at a Bar/Restaurant and a bartender is threatening to either get her fired or sue her for petit larceny because he feels she hasn't been tipping him out his fair share. This is in the state of NY. Is this legal and if so how can she prove she was not in the wrong. 
Petit larceny? Really?

Petit Larceny

Petit larceny is a crime. You don't sue people for crimes; the District Attorney charges people with them.

Lawyers Crotty and Saland explain that New York Penal Law 155.25: Petit Larceny is, in the simplest of terms, about stealing. Usually, but not always, this is in the form of shoplifting. The difference between petit and grand larceny is the value of what was stolen.

I'm not a lawyer and I do not give legal advice. However, as a citizen of the United States I would be shell-shocked if the District Attorney in any state feels it is worth the court's time and energy to get involved in an argument about tip outs between two tipped employees. This is something the employer or manager should be able to handle. Petit larceny is when you leave Macy's with a new outfit in your backpack that you didn't pay for.

If the bartender is truly a petty (ha! sounds like a pun) jerk and is convinced that your friend owes him money, his only legal recourse would be to sue her in small claims court. The burden of proof would be on him, meaning if he can't show:

  • A formal restaurant policy that waitresses tip out bartenders a certain amount; and
  • Proof that she is violation of the terms of her employment, 

I highly doubt this would be considered anything but a waste of time. However, that is my personal opinion and, after all, I'm not a lawyer, just a stupid waitress. ;-)

New York Tip Laws

I found this seven page PDF of frequently asked questions regarding New York state tip laws. I recommend your friend print this out for reference. A few relevant things:

  • Both bartenders and waitresses are considered tipped employees.
  • Tip sharing and tip pooling are legal. 
The situation you are describing is tip sharing, when employees dole out their tips to other employees who gave direct customer service.
  • The employer may require and spell out the rules of tip sharing. 
  • The employer may mandate the percentage of tips to be shared. 

So, my question to you is does your friend pay out a percentage of tips earned, or a percentage of sales to the bartender? I am guessing the former, because a percentage of sales would be easy to prove by looking at receipts. It sounds to me as if the bartender assumes your friend is lying about her cash tips, and wants her to pay up. However, he has no way to prove such a thing.

  • Employers are required keep track of tips. 

This is done via waitresses and bartenders reporting their tips to the employer and to the IRS. Your friend  should be doing this at the end of each shift. If she claims $100 in tips, and the rules state she owes the bartender ten percent, then she owes him $10. His suspicion that she pocketed an extra $20 in cash and didn't claim it is difficult to prove.

  • Employers are not responsible for waitresses who don't claim or share cash tips. 

In other words, if the bartender goes to the owner and says, "She made $20 she didn't claim. She owes me another $2," the owner does not have to pay the bartender.

However, if the owner believes the bartender he may be highly annoyed with the waitress.

At-Will Employment

Unfortunately, most waitresses and bartenders are at-will employees, which basically means no job security. I don't know anything except what you have told me, but if your friend thinks this bartender could get her fired, she is well-advised to document conversations and events (just write down what he said, when, and what happened.) She should also line up her allies, such as co-workers or managers who trust and respect her.

While the bartender is making big threats, he may not have a leg to stand on. This may turn into "he said, she said" and get resolved based upon who the owner trusts, likes, and needs to keep in his employ.

Good luck.

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