I am a server and the restaurant I work REQUIRES that we tip out a certain percentage of our sales to bar staff, hosts, and bussers. The tipshare amount is automatically deducted from our money at the end of the shift and we cannot vary it at all. I don't have a problem tipping out, as long as the employee does their job. Our bussers are allowed to leave early, almost every shift, yet I still have to tip them out. How can that be legal? Everywhere I have served in the past has let me decide how much to tip out. If the employee was more helpful, I throw in a little extra and likewise, if they leave their shift early, I take away for that. Our hosting staff is ridiculous and refuse to do anything besides seat people, even if a server asks them for help, yet they get tipped out. And now...management decided to pay someone to roll silverware for the servers and are requiring that we tip them out on top of bussers, hosts, bar staff and food runners. And all these people are GUARANTEED a certain amount of my sales, regardless of how much I make or how much help they are to me. Many of these people are younger adults who have realized that they are getting this money anyway so they just do the bare minimum. Meanwhile, I cannot REQUIRE that my guests tip a certain amount based on their sales. Yet, the list of people who I am REQUIRED to tip out keeps growing and the amount of help they give me keeps decreasing.....how can this be legal????


Oh and by the way...the new silverware rolling idea was because we always out of rolled silver and management will not make people do their sidework....

Yes the employer can do that. See 3.2.3 Significant Control.
http://www.coworkforce.com/uit/regulation/2003_regulation/Part%20iii.htm
JoeC

Tip Pooling: The requirement that an employee must retain all tips does not preclude a valid tip pooling or sharing arrangement among employees who customarily and regularly receive tips, such as waiters, waitresses, bellhops, counter personnel (who serve customers), busboys/girls and service bartenders. Tipped employees may not be required to share their tips with employees who have not customarily and regularly participated in tip pooling arrangements, such as dishwashers, cooks, chefs, and janitors. Only those tips that are in excess of tips used for the tip credit may be taken for a pool. Tipped employees cannot be required to contribute a greater percentage of their tips than is customary and reasonable.

Roll silverware & hosts workers are not tipped employees...

Tips: Tipped employees are those who customarily and regularly receive more than $30 a month in tips. Employees must be informed in advance if the employer elects to use the tip credit, the amount of tip credit to be claimed, and the employer must be able to show that employees receive at least the applicable minimum wage when wages and tips are combined. Also, employees must retain all of their tips, except to the extent that they participate in a valid tip pooling or sharing arrangement.

http://www.dol.gov/esa/whd/regs/compliance/whdfs15.pdf

http://www.dol.gov/esa/whd/regs/compliance/whdfs2.pdf

Hmm looks like there is an issue between the state and federal. I still think the employer can do it and fall under state law, even if the restaurant falls under the interstate commerce clause of the F.L.S.A. Its very rare that I disagree with Army,Patty,or D.A.W on wage issues. I believe the employer is in compliance under state law.
JoeC

Colorado Min. Wage order 24 re tipped employees

1. An employee engaged in an occupation where he or she customarily and regularly receives more than $30 per month in tips is defined as a tipped employee.

2. Employers must pay a wage of at least $4.00 per hour. If tips combined with wages do not equal minimum wage, the employer must make up the difference in cash wages.

3. *Employer-required of sharing of tips with employees who are not customarily tipped nullifies tip credits towards minimum wage.*

4. Deduction of credit card processing fees from tipped employees nullifies tip credits towards minimum wage.

Colorado Min. Wage order 24 re tipped employees

1. An employee engaged in an occupation where he or she customarily and regularly receives more than $30 per month in tips is defined as a tipped employee.

2. Employers must pay a wage of at least $4.00 per hour. If tips combined with wages do not equal minimum wage, the employer must make up the difference in cash wages.

3. *Employer-required of sharing of tips with employees who are not customarily tipped nullifies tip credits towards minimum wage.*

4. Deduction of credit card processing fees from tipped employees nullifies tip credits towards minimum wage.
So who prevails? Because I still don't see the employer out of compliance. Even using the Federal standard it does not say "Roll silverware & hosts workers are not tipped employees" In fact host,and hostess and bus boys are traditionally tipped employees.
JoeC

Once the issue of who is a tipped employee, which by the way I do not think the roll silverware and host fall under this classification. The tipped out amount is always based on tips received, 20% max, not base on sales.

The worker may want to start using an IRS official form to records the received tips and tipped out amount, such as IRS form 1244.

http://www.irs.gov/pub/irs-pdf/p1244.pdf

Yes but a liberal reading of the Colorado statute puts that call in the employers hands. How the State court is defining significant control is the heart of the issue.

3.2.3 Significant Control. An employer is considered to have significant control over tips, gratuities, or service charges when they are collected by the employer and then redistributed to employees.
JoeC

Once the issue of who is a tipped employee, which by the way I do not think the roll silverware and host fall under this classification. The tipped out amount is always based on tips received, 20% max, not base on sales.

The worker may want to start using an IRS official form to records the received tips and tipped out amount, such as IRS form 1244.

http://www.irs.gov/pub/irs-pdf/p1244.pdf

However, the performance of customary "side work" does not automatically nullify then sub-minimum wage for tipped employees unless the hours spent doing the side work is substantial (more than 20% of the total time).

Dual Jobs: When an employee is employed concurrently in both a tipped and a non-tipped occupation, the tip credit is available only for the hours spent in the tipped occupation. The Act permits an employer to take the tip credit for time spent in duties related to the tipped occupation, even though such duties are not by themselves directed toward producing tips, provided such duties are incidental to the regular duties and are generally assigned to such occupations. Where tipped employees are routinely assigned to maintenance, or where tipped employees spend a substantial amount of time (in excess of 20 percent) performing general preparation work or maintenance, no tip credit may be taken for the time spent in such duties. (emphasis mine)

The FLSA has little to do with the posters complaint its preempted by the state law.
JoeC

First of all, thanks so much for your responses.

I am the original poster and all of the workers receiving these tips make at least minimum wage, some are even making more (between 7.50 and 11 an hour), except me, the server and the bartender I tip out. The hosts and silverware roller are the two who make the most, between 9 and 11. Why should they be tipped?

Also, what about the busser leaving early and I still have to pay him based on my total sales, including tables I have after he has left and had to bus myself.

Thanks again for your responses.