How should tips be viewed legally

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Permalink Reply by tcampos on July 29, 2009 at 1:04am

Hi George! Good question.

For me, I think tips should be viewed as belonging to all those who work in the chain of service. I say so because their individual tasks have an overall effect on the quality of service they give to their clients.

These people, including the waitresses, bartenders, hosts, busboys, kitchen workers and dishwashers, should always remember that they are all on the same team, a team whose goal is to provide the best service to their clients.

Members, what do you think?

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Permalink Reply by Paul Paz on July 29, 2009 at 10:17am

George...

Although your discussion was originally posted 3-months ago, the media reports of declining gratuity income over that past 18-24 months further impacts the net income of tipped waiters. In attempting to offset wage increases, the industry has become more aggressive imposing their influence on the ownership and disposition of gratuities that consumers intended for the individual waiters.

One industry concept that gets in the way of tip sharing (regardless of the formula used) is the common industry practice that waiters are not provided merit wage increases no matter how much an individual contibutes to the organization's success and wealth. I have been with my current employer for almost 20-years (as have other peers). It is difficult to see the other departments (host, bar, bus, management, owners) receive "raises" when often the work of the waiters already includes the requirement of tip-sharing with these other departments that enjoy merit increases.

Why is it that our industry does not offer longterm benefits like merit increases for loyal productive tipped employees... namely the waiters? Is it perhaps the continuing perception of the waiter class being highly disposable?

Paul

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Permalink Reply by George on July 30, 2009 at 10:24am

tcampos, please explain what percentage you feel each should receive from the pool.

We wouldn't want their employer to be able to give more tips to those who will work for the lowest hourly pay would we? I mean, if tips are going to be viewed as the property of all workers, shouldn't there be some kind of safeguard to prevent their employer from offering a bigger percent of the tips to those who will work for the lowest hourly wages? We wouldn't want a to create a bidding war for the customer's tip would we?

One other question I would like you to answer is, if tips are to be viewed as the property of all workers, how would the customer be able to give an individual a tip? Do you really think that customer's should be deprived the right to determine who their tip should belong to?

Wouldn't viewing tips as the property of the individual to whom it has been given, still provide people like you the ability to share your tip with all the workers?

Wouldn't viewing tips as the property of all worker at an establishment prevent customers from determining, for themselves, who should be entitled to their tip?

My point is, I have no problem with you giving all the workers a tip. Is there some reason that those customer's who want to choose for themselves shouldn't have the same rights you seem to want? It's your, the customer's, money. if you want all the workers to have your tip, you should be able to give all the workers a tip. However, if some customers want to tip an individual worker, shouldn't they also be able to tip whom-ever they wish?

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Permalink Reply by George on July 30, 2009 at 10:45am

Shouldn't tips, which originate as the customer's private property, be regarded as belonging to whom-ever the customer gives the tip to? What right does someone, other than the customer, have to determine who the customer's tip belongs.

tcampos, aren't you suggesting that customer's shouldn't decide who their tip belongs to" It is my belief that each and every customer should be afforded their right to determine, for themselves, who their tip belongs. Wouldn't it be logical to assume that if tips are viewed as the property of a group of workers, the customer would not be able to determine who his tip belongs? Isn't it also logical to assume that if tips are viewed as the property of the individual to whom it's given, customer, like yourself, would still be able to tip all the workers?

The more I think about the issue, the more I realize that the only constitutional way to view tips would be to view them as the property of the individual. That way, those customers who want all the workers to share in their tip would have a means to share their tip with those workers they think should receive a share. If tips are regarded as the property of all workers at an establishment, those customers you may only want to tip one or two workers have no way to do so, due to the fact that tips are being regarded as the property of all those who work in the establishment.

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Permalink Reply by Patrick O on August 3, 2009 at 10:25am

Great question!

There are those, here in my province in Canada, that would have you believe that tips are the property of the owner of the restaurant.
Now, if this were the case, then that owner/manager would certainly have a hard time keeping serving staff as I personally wouldn't work at that restaurant.
Think about it for a moment...some servers make exponentially more than others, but do you reasonably think that you would want to stay there if people weren't pulling there own but yet you had to share your hard earned tips?
At the restaurant I work at presently, we tip out the bartender, busser and the remaining back of house/front of house.
It works well and doesn't lead to any arguments.

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Permalink Reply by Paul Paz on August 4, 2009 at 4:44pm

Another tip quirk...

While employers of tipped staff are quick to claim their "share" or control of employee tips... they are invisible when the tipped staffed are "stiffed" for reasons beyond the control of the tipped staff (i.e. owners/management forgot to tell the the kitchen there was a "special' being advertised so the product was very limited on hand or ended up being poor quality for the BOH was not prepared.)

In the end, when the cusotmers are unhappy... they usually display it with no or limited tip. However, they pay the bill, which meets the operations projected margins, so there's no sharing the pain of poor planning, management, ownership.

So essentially, the operators are there for their tip hand-out when things are good, regardless of how difficult they may have made the effort work for the customers and staff.

But if if the tips are lean or 86'd... too bad. That;s the way it goes. Are tipped staff being "pimped" when it comes to gratuities? :-)

Paul

No wonder waiting tables has been call the worlds second oldest profession!

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Permalink Reply by George on May 24, 2011 at 4:37pm

Message from your restaurant owner.

Get out there and beg for money guys. I want to use your tips to pay my cooks. I want to use your tips to pay my dishwashers. I want to use your tips to pay my light bill. Just keep your mouth shut about how I am stealing your tips. I will fire you if you say anything to the customer. It's the customers fault for giving you money and thinking you get to keep it. It's my business and I will steal tips from anyone who comes in here. I've paid off the government to back off and leave me along. I given fund raising dinners for our politicians, I give free meals to our elected officials and I deserve the right to steal people's private property. Workers are a dime a dozen, they are the scum of the earth, leaching off the success of people such as myself. I will tell you what to do if you work for me. I don't care about laws. I dont' care what the public thinks, I am business owner, I am God, I deserve it. If you don't like it quit or be fired.

 

God bless America where such fine upstanding people in our society are dubbed successful.  

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Permalink Reply by vincent guerrero on June 5, 2011 at 8:53pm

Legal issues aside, tips are the motivation for great service.  As a server, if someone did right by me, I tipped them out well, if not, they didn't get much.  On the other side if a server stiffed my, they got nothing from me.  I'd spend my energy where the money is.  I've seen employers try to pool tips, but that just takes the wind out of everyones sails.  No one works.

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Permalink Reply by George on June 6, 2011 at 2:36pm

Federal regulations state that Nothing in this subsection shall be construed to prohibit the pooling of tips among employees who customarily and regularly receive tips.

 

While many people want tipped employees to believe that federal laws are stating that tip pooling is allowed only when the pool includes employees who customarily and regularly receive tips, that's not the way federal regulations define tips or tip pools.

 

Tips are defined by CFR 531.52 as money belonging to an employee which he may use as he chooses free of any control of the employer. Clearly, what CFR 531.52 is instructing is that employees may include anyone in their tip pool, if that's the way they are actually choosing to use their tips.

Tip pooling is defined by CFR 531.52 as where the basis by which tips will be pooled is determined by mutualy agreement among employees. Clearly, what CFR 531.54 is instructing is that, again, employee may include anyone in their tip pool as long as all employees are in mutual agreement.

 

What both CFR 531.52 and CFR 531.54 clarify is that it is the right of the employee who has been presented a tip to determine who will be included in a tip pool that shares his tips with other employees.

What most people fail to realize is that when an employer requires tip pooling, it is the employer, rather than the employees, who is determining who will be included in the tip pool. Those employee whom the employer is requiring pool their tips, are being included in the pool. What this means is that when an employer requires tip pooling, all those being required to pool tips are being included by the employer in the tip pool even though federal regulations define tip pooling as where the employees mutually agree on who will be included in the pool.  

Employer required tip pooling is an inaccurate discripton of business practice which has become rampant across our nation. According to the federal regulations which define tips and tip pooling, an employer required tip pool cannot exist.

According to CFR 531.52 employer required tip pooling cannot be legally considered a "TIP" pool, due to the fact that tips, as used in section 203(m) must be received as money belonging to an employee which he may use as he chooses free fo any contorl of the employer.  The fact that the employer who requires tip pooling is determining that the tips will be used for a tip pool is proof that the employees participating in the agreement are not actually participating in a "TIP" pooling arrangement.

 

According to CFR 531.54, an employer required tip pool cannot legally be considered a tip pool, due to the fact that tip pools are defined as that which employees mutually agree on the basis by which tips will be pooled. The fact that the employer is determining who will be required to particpate in the so-called tip pool is proof that the pool is not a tip pool as define under federal regulations. A tip pool is where the employees mutually agree on whom tips will be distributed to, not where an employer requires a tip pool where he will determine who tips will be distriubuted to.

In conclusion, it is a blatant lie for anyone to suggest that federal laws do not prohibit employers from requiring tip pools. Federal laws, in conjunction with the federal regulations which define tips, clearly insuct that federal laws shall not be construed to prohibit an employee from using his tips however he chooses free of any control of the emplyer. Federal laws, in conjunction with the federal regulations which define tip pooling, clearly instruct that federal laws shall not be construed to prohibit employees from mutually agreeing on the basis by which tips will be redistributed through a tip pool.

 

When federal laws are unlawfully misconstrued as not prohibiting employers from requiring tip pools, employees who customarily and regularly receive tips are subsequently prohibited from pooling tips as defined under federal regulations. Thus, employer required tip pools are prohibited under federal law. When an employer requires tip pooling, those empoyees being required to pool tips are subsequently prohibited from pooling tips as defined under the federal regulations which define the terms used by federal law.

 

What 29 USC section 203(m) actually states is that nothing in this subsections shall be construed to prohibit an employee who customarily and reguarly receives tips from using his tips however he choses free of any control of the employer. What the law also states is that nothing in this subsection shall be construed to prohibit employees who customarily and regularly receive tips from using their tips for a tip pool that distributes tips to the employees on a basis determine by the employees.

 

When an employer requires tip pooling, he is unlawfully misconstruing federal laws to where those employees who customarily and regularly receive tips are prohibited from pooling tips as defined by federal regulations. Employee cannot use their tips as they choose when their employer is requiring that they use their tips for his tip pool. Employees cannot mutually agree on the basis by which their tips will be redistributed through a tip pool when their employer is requiring that tips be redistributed through a tip pool which the emploher is requiring and thus deterining the basis of.

 

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Permalink Reply by Giuseppe De Carlo on June 7, 2011 at 10:21pm

George, I made this statement, years ago, the problem was created when compulsary tipping, was introduced and accepted withoth a tought, no one asked and no one informed you of the trapping, Unions nor Governament, because of the word compulsary, your tip can be divided because it does not define to whom it belongs, you can quote all the legal numbers and governament laws, they are meaningless, I will repeat my solution, servers should fight for full wages and remove compulsary tipping, for the propietors resolution with no compulsary tipping they can raise the prices 10-15% this would cover your extra wages (easy) and the diners will pay the extra knowing the compulsary tipping is no longer there and it is up to 25%.

Back to the waiters/servers, custmers will still tip in accordance to service and no one can touch this tips, you have earned them.(some customers may not tip you should respect that, for they too keep you employed)

having said that servers will need to realy work harder and better, up to now your tips were there, now you would have to earn them. So everything up to now has not worked, this problem belongs to the governamet to resolve, and remember, they are the servants and people govern not the other way around. and tipping has nothing to do with governament, tipping is a way diners show their appreciation for your swift and profssional service ,   Giuseppe

 

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Permalink Reply by Giuseppe De Carlo on June 16, 2011 at 4:00am

Hi George, I have just read the florida decission on tips, maybe we should embarc on a new course of action, now I am not very good in discribing things well, so be patient. All the rulling will go against the servers, but in actual fact you are all waiters/ waitress, and we wait to serve diners, (serving means to place plates?) to do this well we are trained in such a way to be able to represent any establishment any where in the world, we are capable of serving,

Royalties,

Heads of governament,

The welthy. in every field, this are traveled and knowledgable people. we as waiters, are trained to learn  how to treat these people and answer all their questions

About, French, Italian, German, Australian, Chelian, Spanish, South African and local wines,  Plus spirit liquors, fortified wines and how they are produced,

Then of course there is Italian and French cuisine, which we learn how everything is cooked, so that we know how to answer with knowledgable when they question us on food or wines Champages, and the ethiquette of service, Of course we also have to be prompt, polite, attentive, diplomatic, and very rarely tolerant. no we are not servants nor are we severs, but professional waiters, we should not be degraded as servers, people that give us service, are Taxi driver, hair dresser or stylist, beauticians, solicitors, accountants, all bank empolyees, but they are not described as servers, Beaurocrats are sevants, The President is a public servant, yet they are not discribed as servers, and people that serve in Hamburger, Pizza, fast food, (some intelectual as bundled us together,) are not in the same class.

as waiters that work in a middle to high restaurant, we of the middle to high class restaurants, our service as always been of a superior standard, and an establishment hires us for our competance and to keep the standard of the restaurant high, so that our diners will return, which is what the propietors want. in return we must be paid the proper wage, eg $600.00 per week, no compulsary tipping required, and if the diner feels we do a great job and want to tip us, it is their prerogative, the tip belongs to the waiter, no managment or governament has the right to interfeer, with the general public and clients. Furthermore the back of the house, chefs, cooks, pastry cooks, are highly paid, Depending on competance, why we deserve to keep our hard earned  tips, is because we keep the standard up for the front of the house, we are the ones whos deal directly with the diners, you can have the best back of the house, if the waiters are mediocre, the establishment will suffer. 

people that get tips for doing a good job are,

Hair dressers,

Taxi drivers,

Delivery people, and everybody that gives service and doesd a good job. what we need is some mental giant t say, the above people should get compulsary tipping, compulsary means good bye service.   

 

 

 

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