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Tip pool questions South Carolina

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  • Tip pool questions South Carolina

    I work in a Brazilian steak house that runs on a tip share between the Gaucho's (meat chefs/cutters), servers, bartenders, and sides person. We also have a drink cart person that has always been on their own tips and gets paid by the restaurant for every drink they sell. Recently the restaurant has had problems with having that person come in and when they don't they task one of the servers to do it. They allow the tips made from the cart to be added to the tip share but do not pay out the drinks that are sold. This usually leads to a significant difference in what the person contributes to the tip pool (usually around $120 less or even more a night). My question is under U.S. law is it legal to change the structure of a tip share without any type of notification or approval and is it also legal to withhold money that you normal pay one employee and not another?

  • #2
    yes, it is legal. If someone is just filling in, they would still be paid their usual wages. They aren't legally entitled to the wages for their regular job plus what the coworker would have earned.
    I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

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    • #3
      I read or perhaps misread OP in that a replacement drink cart staffer gets his or her cut of top pool but the per drink pay sort of escheats to house. I doubt there is SC law on tip pooling ..and while one can debate if practice is fair..does not appear to be illegal.

      There are some points raised under FLSA. And DOL as to tip pooling practices involving chefs and management ...not sure if any of this applies...if management pockets the drink cart pay not paid out it may not be a tip as defined.....

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      • #4
        Agreed with EllleMd. There is a complication in that while federal law (FLSA) has some basic rules on tips (see below), FLSA also supports the Common Law standards of industry practice. Meaning the state matters and the industry matters. If OP files a law suit, the judge not only looks at federal/state statutory/regulatory law, but also at court decisions for similar industries.

        http://www.dol.gov/whd/regs/compliance/whdfs15.pdf
        "Reality is that which, when you stop believing in it, doesn't go away".
        Philip K. **** (1928-1982)

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        • #5
          Tip pooling is legal and also not the question. The servers are neither management nor chefs so there is no issue there. The law does not require that any server filling in selling drinks be paid a commission on each drink sold over and above their usual wages and tips.
          I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

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