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Workplace Tip Sharing Wisconsin

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  • Workplace Tip Sharing Wisconsin

    I'm asking this question on behalf of a friend. My friend works in a restaurant as the sole counter person, hourly wage at around $8/hour. Customers will order at the counter, have a seat, and once the order is prepared, my friend delivers the order to the table. In the back-of-house, there is a cook, who is also a co-owner of the restaurant, and an employee who is a dishwasher.

    All tips from customers are given either through credit cards or depositing cash into a jar on the counter. Recently, the owners have implemented a new tip sharing method which requires the total tips to be distributed based on the amount of hours an employee has worked. For example,

    TOTAL TIPS: $100

    COOK: 8 HOURS
    COUNTER-PERSON: 8 HOURS
    DISHWASHER: 3 HOURS

    TOTAL HOURS: 19

    $100/19 HOURS = $5.26 AN HOUR

    Can a cook (who is also a co-owner) and a dishwasher, legally be allowed to receive a share of the tips? From my research, it appears that tips can only be shared among positions that "customarily and regularly receive tips", as stated at http://www.workplacefairness.org/tips#10. The web page also states that "tipped employees may not be forced to share their tips with employees who have not customarily and regularly participated in tip pooling arrangements, such as dishwashers, cooks, chefs, and janitors...".

    Does my friend have a case if she chooses to bring this matter up with the Federal or State Labor Department? At the very least, I would think it is illegal for an owner to take any portion of the tips. If anyone has any information on how my friend should proceed, she would really appreciate it. Thanks.

  • #2
    She is certainly free to file a claim with the state DOL. It is free to do so.
    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 can't say whether your firend has a case. I found a blog article written by a Wisconsin lawyer who stated:

      Those sharing in the tips must be employees who customarily and regularly receive tips (e.g. not dishwashers or cooks), and in no event may include management employees.
      You can find the whole article at http://www.hq-law.com/blog/Wage-and-...employees.html. The author does not cite any statutory or case law authority for his statement, so it is not easy to confirm.
      David K. Staub (www.illinoisbusinessattorney.com)
      Forum posts are not legal advice, are for informational and educational purposes only, and are not a substitute for proper consultation with legal counsel.

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      • #4
        Thank you, both. She has decided she will bring the illegality of the situation up with the owners and see where the situation goes from there. Does my friend have any legal recourse if she is fired for claiming that the situation is illegal? I'm not confident that she would be fired, but it seems that the owners don't always like to play by the rules.

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        • #5
          Yes and no. Federal law (FLSA) would consider a termination caused by filing a federal wage claim with DOL to be unlawful. Of course, proving that was THE reason for the termination is not automatic. And most wage claims are filed with state DOL. Your state is not my state. WI likely has a similar rule, but I do not know that as a fact.
          "Reality is that which, when you stop believing in it, doesn't go away".
          Philip K. **** (1928-1982)

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          • #6
            Wage claim retaliation law Wisconsin -

            Under Section 111.31-111.395 of the Wisconsin Statutes an employer is prohibited from retaliating against any employee who files a complaint, attempts to enforce a right permitted by statute, or testifies in a case, or assists in a case under the state's labor standards laws such as child labor, minimum wage, hours of work and overtime, wage payment and collection, and prevailing wage rate laws.

            The law's protections also apply if an employer takes an adverse employment action against the employee because that employer believes the employee has exercised any of the above rights.
            Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

            Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

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            • #7
              Be a bit careful....I simply don't know if the retialation protections apply to a complaint to management or just to a formal complaint to agency.....but anticipate a bit of backlash.

              As far as I know you can bank a wage complaint with good records of course for up to two years in WI..not that I suggest waiting that long ..but it may not be a matter that requires an immediate action...

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              • #8
                Persons filing a claim for wages must do so on a the Wisconsin Labor Standards Complaint Form within 2 years of the date earned.

                http://dwd.wisconsin.gov:80/er/labor...wage_claim.htm
                Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

                Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

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