Federal laws apply in all 50 states.
Your state’s laws may supplement the federal Fair Labor Standards Act, but your state’s law may not replace the minimum protections afforded under the federal law including federal tip share laws. To be clear, your state’s laws may only supplement federal law if your state’s laws provide additional protections to workers. In other words, everything that federal law requires applies to workers in all 50 states, but your state’s law may supplement the federal law with greater protections for workers.
This article is based on federal law, so regardless of where you live, the below are the minimum protections that you are afforded. Depending on your state’s laws, there may be additional protections not discussed – federal law also has additional protections not discussed in this article. If you are interested in learning more about your rights as a waiter or waitress, see our Legal Center for Restaurant Employees (here).
Using Tip Share to Cover Expenses or Losses is Illegal
Under Federal Law (again, meaning the law applies in all 50 States), it is illegal to require a tipped employee to pay for business expenses such as cash shortages, walk-outs, wrong-ordered food, uniforms, broken dishes, or any other expense of the restaurant.
No matter how many times I say it, some server will insist that their employer can legally require them to cover expenses or losses because the law does not apply to them since they live in a right to work state. This is simply not true, federal law protects server’s tips and wages in all 50 states.
Sharing Tips with Managers or Owners is Illegal
Under Federal law, it is still (as of 2019) illegal for servers to share tips with managers or owners – in all 50 states. What is less obvious and even more common, is this applies even if your manager or restaurant owner is working as the “bartender” that shift. It is illegal for a restaurant to require waitstaff to share tips with a manager working as a bartender or an owner working as a bartender.
As many times as I have seen restaurant managers and owners sharing in tips, it still infuriates me each time I learn that a restaurant owner or manager is sharing in tips from servers. As if their salary is not enough, they can not keep their hand out of the cookie jar!
Sharing tips with back-of-the-house is Illegal
Sharing tips with staff in back-of-the-house is illegal. There are the obvious back-of-the-house employees such as cooks, dishwashers, expediters, fryers, and other kitchen staff. It is illegal for restaurants to require servers to share tips with any back of the house employee.
However, a job title is not the sole determination of whether the worker is properly considered BOH or FOH. For instance, an employee who is given the job title “food runner” (traditionally, food runners are FOH) but the “food runner” spends each shift working in the kitchen window plating food and does not actually run food to tables, is considered a BOH employee. Therefore, it would be illegal to share tips with this “food runner” – the restaurant is solely responsible for compensating all BOH employees.
Determine Who is Actually Receiving Your Tip Share
Oftentimes, restaurants tell their servers that their tips are being shared only with front-of-the-house employees (e.g. hosts and bartenders). However, servers frequently do not actually know who receives the tip share. How do you determine whether the FOH is actually receiving your tip share? My advice is to simply ask them. You would be surprised the number of times a server has discovered their employer was pocketing a portion of the tip pool by asking co-workers about how much they are receiving from the tip pool.
SPEAK WITH A KNOWLEDGEABLE WAGE LAWYER
If you have questions about your wages, tips, or an employer’s tip share policy, contact Herrmann Law to discuss with one of our experienced wage lawyers: 817-479-9229 or submit your case online (here) and someone from our office will contact you to schedule an appointment.