Real average hourly earnings fell 1.6% from October 2010 to October 2011. Although wages were up about 1.8%, they failed to keep up with the 3.6% inflation rate published by the Bureau of Labor Statistics.
We read a story today about a restaurant whose owner was dismayed by his employees' apparent obsession with earning tips, rather than providing good service. Perhaps not recognizing the relationship between those two objectives, he instituted a policy whereby he collects all of the restaurant's tips and redistributes (some or all of) them to various employees, including managers.
California law forbids this. So perhaps it's worth sharing the DIR's FAQs on the laws in California regarding tipping. The Cliff Notes version: the tips belong to the workers, not the owners, and not the managers, but restaurants and other businesses whose workers earn tips can mandate that their tipped employees pool their tips to be shared among tip-eligible workers, as long as management doesn't keep any for itself.
Here's what the Department of Industrial Relations has to say on the matter.
Labor Code Section 351 prohibits employers and their agents from sharing in or keeping any portion of a gratuity left for or given to one or more employees by a patron. Furthermore it is illegal for employers to make wage deductions from gratuities, or from using gratuities as direct or indirect credits against an employee’s wages. The law further states that gratuities are the sole property of the employee or employees to whom they are given. "Gratuity" is defined in the Labor Code as a tip, gratuity, or money that has been paid or given to or left for an employee by a patron of a business over and above the actual amount due for services rendered or for goods, food, drink, articles sold or served to patrons. It also includes any amount paid directly by a patron to a dancer covered by IWC Wage Order 5 or 10.
What is a tip?
A tip is money a customer leaves for an employee over the amount due for the goods sold or services rendered. Tips belong to the employee, not to the employer.
When a customer pays their bill with a credit card and the payment includes a tip, when can the employee expect to receive the money from the employer?
Payment of a gratuity made by a patron using a credit card must be paid to the employee not later than the next regular payday following the date the patron authorized the credit card payment. Labor Code Section 351
My employer is deducting the credit card processing fees from my tips. Is this legal?
No. Labor Code Section 351 provides that the employer must pay the employee the full amount of the tip that is indicated on the credit card. The employer may not make any deduction for credit card processing fees or costs that are charged to the employer by the credit card company from gratuities paid to the employee.
I work in a large restaurant as a waiter. My employer told me that I am required to share my tips with the busboy and the bartender. Am I obligated to do this?
Yes. According to a California court, Labor Code Section 351 allows involuntary tip pooling. Therefore, your employer can require that you share your tips with other staff that provide service in the restaurant. In this regard, it’s DLSE’s position that when a tip pooling arrangement is in effect, the tips are to be distributed among the employees who provide "direct table service." Such employees could conceivably include waiters and waitresses, busboys, bartenders, host/hostesses and maitre d’s. Employees who do not provide direct table service and who do not share in the tip pool include dishwashers, cooks, and chefs, except in restaurants where the chefs prepare the food at the patron’s table, in which case the chef may participate in the tip pool. Additionally, tip pooling cannot be used to compensate the owner(s), manager(s), or supervisor(s) of the business, even if these individuals should provide direct table service to a patron.
Are the tips I receive considered part of my "regular rate of pay" for overtime calculations?
No. Since tips are voluntarily left for you by the customer of the business and are not being provided by the employer, they are not considered as part of your regular rate of pay when calculating overtime.
Is a mandatory service charge considered to be the same as a tip or gratuity?
No, a tip is a voluntary amount left by a patron for an employee. A mandatory service charge is an amount that a patron is required to pay based on a contractual agreement or a specified required service amount listed on the menu of an establishment. An example of a mandatory service charge that is a contractual agreement would be a 10 or 15 percent charge added to the cost of a banquet. Such charges are considered as amounts owed by the patron to the establishment and are not gratuities voluntarily left for the employees. Therefore, when an employer distributes all or part of a service charge to its employees, the distribution may be at the discretion of the employer and the service charge, which would be in the nature of a bonus, would be included in the regular rate of pay when calculating overtime payments.
My employer deducts my tips from my paycheck. Is this legal?
No. Your employer can neither take your tips (or any part of them), nor deduct money from your wages because of the tips you earn. Furthermore, your employer cannot credit your tips against the money the employer owes you. Labor Code Section 351
My employer pays me less than the minimum wage because he includes my tips in my hourly pay. Is this legal?
No. Unlike under federal regulations, in California an employer cannot use an employee’s tips as a credit towards its obligation to pay the minimum wage. California law requires that employees receive the minimum wage plus any tips left for them by patrons of the employer’s business. Labor Code Section 351
What can I do if my employer credits my tips against my wages?
You can either file a wage claim with the Division of Labor Standards Enforcement (the Labor Commissioner’s Office), or you can file a lawsuit in court against your employer in to recover the lost wages. Additionally, if your employer is crediting your tips against your wages, you are being underpaid your wages and thus, if you no longer work for this employer, you can make a claim for the waiting time penalty.
What is the procedure that is followed after I file a wage claim?
After your claim is completed and filed with a local office of the Division of Labor Standards Enforcement (DLSE), it will be assigned to a Deputy Labor Commissioner who will determine, based upon the circumstances of the claim and information presented, how best to proceed. Initial action taken regarding the claim can be (i) referral to a conference, (ii) referral to a hearing, or (iii) dismissal of the claim.
If the decision is to hold a conference, the parties will be notified by mail of the date, time and place of the conference. The purpose of the conference is to determine the validity of the claim, and to see if the claim can be resolved without a hearing. If the claim is not resolved at the conference, the next step usually is to refer the matter to a hearing or dismiss it for lack of evidence.
At the hearing the parties and witnesses testify under oath, and the proceeding is recorded. After the hearing, an Order, Decision, or Award (ODA) of the Labor Commissioner will be served on the parties.
Either party may appeal the ODA to a civil court of competent jurisdiction. The court will set the matter for trial, with each party having the opportunity to present evidence and witnesses. The evidence and testimony presented at the Labor Commissioner’s hearing will not be the basis for the court’s decision. In the case of an appeal by the employer, DLSE may represent an employee who is financially unable to afford counsel in the court proceeding.
What can I do if I prevail at the hearing and the employer doesn’t pay or appeal the Order, Decision, or Award?
When the Order, Decision, or Award (ODA) is in the employee's favor and there is no appeal, and the employer does not pay the ODA, the Division of Labor Standards Enforcement (DLSE) will have the court enter the ODA as a judgment against the employer. This judgment has the same force and effect as any other money judgment entered by the court. Consequently, you may either try to collect the judgment yourself or you can assign it to DLSE.
What can I do if my employer retaliates against me because I objected to his crediting my tips against my wages?
If your employer discriminates or retaliates against you in any manner whatsoever, for example, he discharges you because you object to his crediting your tips against your wages, or because you file a claim or threaten to file a claim with the Labor Commissioner, you can file a discrimination/retaliation complaint with the Labor Commissioner’s Office. In the alternative, you can file a lawsuit in court against your employer.
ACI is presenting its 14th annual National Conference on Wage & Hour Claims and Class Actions in January 2012 in Miami, Florida. The conference takes place at the Hyatt Regency Miami (an excellent place to spend time in January) on Monday, January 30 and Tuesday, January 31, 2012. Here is a synopsis of the conference:
The wage & hour landscape has been turned upside down post-Wal-Mart v. Dukes and AT&T Mobility v. Concepcion. Your colleagues and clients will be in Miami in late January to hone their skills and knowledge needed to succeed in this rapidly expanding and evolving area of law, adapt to emerging regulations and changing enforcement priorities, and respond new and innovative claims. Join them to ensure that you are prepared to navigate and defend against the leading type of class action in the country.
The sheer number of wage and hour claims and class actions across the country is staggering. Wage and hour class actions are the leading type of class action nationwide – and by a large margin. With so many of these cases getting certified and succeeding at trial, compliance and prevention are equally important to trial strategy. The Obama administration continues to send a strong signal that it is making wage and hour enforcement a priority, and it is clear that preventing, managing, and defending these claims remains a key issue for companies across the nation.
It is with this in mind that ACI has developed its 14th National Forum on Wage and Hour Claims and Class Actions, the nation’s premier forum for in-house counsel, labor and employment attorneys, and class action lawyers. We have assembled an extraordinary faculty of attorneys from the nation’s top firms, a full panel of distinguished jurists, and in-house counsel from CBS, Bank of America, IBM, Ryder System, Bayer, Citigroup, Canam Steel, Family Dollar Stores, Northrop Grumman, Interval International, Coca Cola, Ally Financial, PSEG, DHL Global Forwarding, Viacom, Paychex, Direct TV, and many others. Our unparalleled faculty will provide you with expert advice, insider strategies, and comprehensive updates on all of the latest developments, including:
• Complying with and responding to changing Wage & Hour Federal and State Priorities and Investigations • Clarifying the standards and requirements for class certification in light of Wal-Mart v. Dukes • Using AT&T Mobility v. Concepcion and arbitrations agreements as a tool to avoid class treatment • Determining when employees are “on the clock” and avoiding overtime claims in the digital work world • Examining recent rulings by courts and the DOL to ensure proper classification of employees
We've been to this seminar before, and it was a valuable experience. It's good for 12.25 hours of California MCLE credits, plus another 2 hours for each workshop (with workshop B counting toward ethics).
Here's the best part - a discount for our readers:
We've agreed to be one of ACI's media partners for this conference so that our readers can get a $200 discount off the current price tier. Use discount code WLB 200. Register by Thursday (November 17, 2011) for early bird pricing. Rates increase after November 17 and after January 5. The walk-up price for this conference is $2,295 (additional registration fees apply for the two workshops), but as a Wage Law reader, if you act by November 17, 2011, you can get in for $1,795.
The list of topics and speakers is impressive. A complete brochure can be downloaded here. If we're not in trial, we'll see you there.
We received word from Katie Lichty, the Project Coordinator for the California Channel, that the Brinker hearing will indeed be broadcast live tomorrow morning at 9:00 a.m. You can watch it on cable if you get the California Channel, or you can watch it streamed live at www.calchannel.com.
This proceeding will be heard at the Supreme Court’s Courtroom, Earl Warren Center, 350 McAllister Street, San Francisco, where you can watch it in person - if you come early enough to get a seat. For more information please contact the court’s press office at (415) 865.7726.
The FLSA and the California Labor Code require that non-exempt employees must be paid for all hours actually worked. Therefore, an employee who works the 2 o'clock hour on Daylight Saving Time, and then again works the 2 o'clock hour on Standard Time has worked two hours and is entitled to payment for both. See, e.g., DOL Advisement on Daylight Savings [sic] Time.
To our surprise, there are some employers who believe that someone who worked from 10:00 p.m. on Saturday to 6:00 a.m. on Sunday is entitled to be paid for no more than 8 hours. Such an employee actually worked nine hours and is entitled to 8 hours of regular pay and 1 hour of overtime.
"They'll make it up in March when they get paid 8 hours of pay for 7 hours of work" is not a defense.