Originally published by Leiza Dolghih.
If you own a restaurant, or you work in one, you are probably familiar with the practice of pooling tips, i.e. gathering all tips from the shift and splitting them between waiters, busboys, bartenders, etc. Under the FLSA, only those employees who “customarily and regularly receive tips” may be included in the pool in order for an employer to receive a “tip credit” for such employees. The Department of Labor (“DOL”) has issued several rules and guidance over the years as to which occupations customarily and regularly receive tips and which do not. For example, waiters/waitresses, bellhops, counter personnel who serve customers, busboys/girls (server helpers), and service bartenders are considered tipped occupations, while janitors, dishwashers, chefs or cooks, and laundry room attendants are not.
The DOL also clarified in some of its opinion letters that one’s status as an employee who “customarily and regularly receives tips” is “determined on the basis of his or her activities,” not on the employee’s job title. Thus, while regular chefs are not tipped employees, sushi chefs who work at a counter in the dining room and directly serve customers may participate in tip pools. Some courts have found that hostesses were tipped employees because they had “more than de minimis interaction with the customers” in an industry in which “undesignated tips are common.” However, salad preparers were not tipped employees because they “abstained from any direct intercourse with diners, worked entirely outside the view of restaurant patrons, and solely performed duties traditionally classified as food preparation or kitchen support work.”
The Fifth Circuit ruled that “in determining whether an employee customarily and regularly receives tips, a court—or a factfinder—must consider the extent of an employee’s customer interaction.” It explained that the central difference between employees who are traditionally tipped and those who are not is that the former work primarily in the front of the house where they are seen by and interact with customers, while the latter work primarily or exclusively in the back of the house. Applying this logic, it found that the district court erred in failing to consider the extent of the coffeeman’s customer interaction in determining whether he customarily and regularly received tips.
In conclusion, the Court explained that “determining whether an employee is one who “customarily and regularly receives tips” is a fact-intensive inquiry that requires a “case-by-case analysis of the employee’s duties and activities.”
TAKEAWAY: In recent years, restaurant industry has faced many wage-and-hour lawsuits involving claims for unpaid overtime and failure to pay minimum wage. Restaurants which use tip pools face additional claims related to such pooling arrangements. The Montano case illustrates that who is a “tipped employee” and who is not for the purpose of a pooling arrangement is a factually intense question, which means that employers should carefully consider whether certain types of their employees belong in a tipping pool and should consult with an attorney before instituting such a system in their establishment.
Leiza Dolghih represents both companies and employees in litigation and arbitration proceedings in state and federal courts. If you are facing an actual or a potential employment dispute, contact Ms. Dolghih for a confidential consultation at Leiza.Dolghih@GodwinLewis.com or (214) 939-4458.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
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