UnderCover Waitress: February 2014

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Tuesday, February 25, 2014

More Questions and Answers in the Tip Out Debte

Ask the Waitress! This question was left as a comment on an earlier post.
I am joining this conversation really late, but I am trying to find any legitimate advice on how to handle my new work situation. I have been a server for years, and have always worked in places that are busy that it feels necessary to tip out a busser/bartender/sometimes the kitchen. However, I just started working in a restaurant where we are required to tip out 4% of our food sales to the kitchen, 4% to the bar, and 1.5% to the busser. The problem I have with this is that all of the people mentioned make minimum wage or more and I am paid 3.35/hr. I have been making about $15-40 (one night I made $4 after having to tip out $3) and tipping out the kitchen at least $11 on a SLOW night. I completely understand WHY servers would want to tip out kitchen, but in this case it makes absolutely no sense. As servers, we do hours of kitchen prep work for our own side work (peeling shrimp, portioning chicken/beef/rice/pasta, crumbling cheese...to name a few). Is it even legal to require a server to tip pretty much 30% of their tips? It seems like it has to be illegal just based on the fact that our wages are the only ones adjusted because we are apparently making up for it in tips. 
Wow. First, thank you for writing. You bring up a plethora of issues that seem to affect waitresses and waiters across the county. I would like to address them here, one by one.

Tip Pooling 

It is against federal law to require food servers to share tips with the kitchen or any other back of house employee. Period. If you have to do it, you have a wage theft claim. Please see Fact Sheet #15: Tipped Employees Under the Fair Labor Standards Act (FLSA) on the Department of Labor's websites.

Personally, I would like to debate your opinion that you understand why you should share tips with the kitchen on busy nights. You should never have to. On busy nights when you make a lot of money, save it up to make up for lack of funds earned on slow nights. Is the kitchen sharing their wages with you on slow nights? Why should you have to share on busy nights? If the kitchen doesn't make enough money, they need to take that up with the employer, not with you.

Percentage of Pooled Tips

People have written in to tell me I am wrong about this, but on the federal level, there is no limit to the percentage of tips you may be forced to share with other employees in service positions.

Some states may have more to say about this. I encourage people who say there are legal limits to how much you may be required to tip out to please include the state in which you wait tables. I believe Massachusetts has a clause about a "reasonable" amount, but I have never seen that "reasonable" amount defined beyond whatever is common in the area.

Yes, tips are the property of the tipped employee. As such, the employer may not require the waitress to give him her tips. However, the employer may require tip pooling among front of house employees, which is another way of saying it is legal to force waitresses to tip out bussers, bartenders, and others who have direct contact with customers.

Minimum Wage 

If you are paid $3.35 per hour, you have to bring home enough tips to make full minimum wage. If you are required to tip out thirty percent, but that brings you down to only $5 per hour, the employer has to make up the difference, or let you keep the tips. This is covered in the above-referenced fact sheet under "tip credit." Otherwise, what I said above applies.

Kitchen Prep and Side Work

This one is covered under "Dual Jobs" on the fact sheet. You should not spend more than twenty percent of your time at work doing side work. For example, if you work a 6 hour shift, 1.2 of those hours = 20 percent. Therefore, you should spend 4.8 of those hours waiting tables.

Some specific side work duties are considered reasonable parts of your job; for example, polishing silverware, cleaning the dining room, putting bar glasses away.

When you are required to work in the kitchen doing food preparation, you have a reasonable argument that your employer owes you full minimum wage for those hours. That kitchen work is not directly related to your front of house, tipped labor job.

Conclusion

Based solely upon what you wrote and no other information about your work situation, it sounds as if your employer is breaking numerous laws.

1) You are required to tip out the kitchen, which is illegal. You have a wage theft claim on this one.

2) You are required to perform kitchen work for under minimum wage. If you find yourself spending more than twenty percent of your time performing non-tipped duties, you may have a wage theft claim on this point.

3) I doublt it is illegal for your employer to require 30 percent of your tips go to others; he is breaking the law over who is getting your tips, not how much they are getting. However, if you ever go home with less than full minimum wage, then you have a wage theft claim on this point.

Of course, I am not a lawyer -- just a stupid waitress. ;-D

Best of luck to you!