Top Ten Tips Disclaimer
The U.S. Department of Labor's position is that tip-pooling / tip-sharing arrangements are permissible as long as the employees sharing in the tips have somehow participated in serving the customers who left the tips. Courts cases regarding tip-sharing arrangements focus on whether the employee interacted with the customer, assisted in providing the customer with a pleasurable dining experience, and/or provided "direct table service" before or during the meal, while the customer was seated. It is a good practice to put the tip-sharing policy in writing and have everyone acknowledge it.
DOL regulation 29 C.F.R. § 531.54 – "Tip pooling. Where employees practice tip splitting, as where waiters give a portion of their tips to the busboys, both the amounts retained by the waiters and those given the busboys are considered tips of the individuals who retain them, in applying the provisions of sections [203(m)] and [203(t)]. Similarly, where an accounting is made to an employer for his information only or in furtherance of a pooling arrangement whereby the employer redistributes the tips to the employees upon some basis to which they have mutually agreed among themselves, the amounts received and retained by each individual as his own are counted as his tips for purposes of the Act. Section [203(m)] does not impose a maximum contribution percentage on valid mandatory tip pools, which can only include those employees who customarily and regularly receive tips. However, an employer must notify its employees of any required tip pool contribution amount, may only take a tip credit for the amount of tips each employee ultimately receives, and may not retain any of the employees' tips for any other purpose." These requirements are in addition to the other requirements outlined in 29 C.F.R. § 531.59(b) for taking the tip credit for tipped employees.
DOL Field Operations Handbook § 30d04: Tip pooling.
Two DOL opinion letters address this issue:
Gratuities charged by an employer are not tips – see http://www.tipcompliance.com/polLearningCenter.cfm?doc_id=89 - "A gratuity is not considered tip income within the control of the regularly tipped employee. A gratuity is a charge that is directly added for services rendered as determined by management, e.g. adding an 18% gratuity for parties over 10 people. This amount is considered wages, and is within the control of the employer, not the employee. Employers may distribute a gratuity at their discretion."
Chau v. Starbucks, 94 Cal.Rptr.3d 593 3 (Cal. Ct. App., 4th Dist., July 2, 2009) - Section 351 (the California tipped employee statute) does not contain any language prohibiting an employer from equitably dividing tips placed in a collective box among the employees who provided the service.
Budrow v. Dave & Busters of Calif., Inc., 90 Cal.Rptr.3d 239 (Cal. Ct. App., 2nd Dist., Mar. 2, 2009) - Bartenders who poured or mixed drinks that were brought to restaurant patrons at their tables could participate in tip pools established pursuant to statute making gratuities property of employees to whom they were paid, even if bartenders did not personally bring drinks to tables.
Hosts are tipped employees: Kilgore v. Outback Steakhouse of Florida, Inc., a/k/a FMI Restaurants, Inc., 160 F.3d 294 (6th Cir. 1998): "an employer must inform its employees of its intent to take a tip credit toward the employer's minimum wage obligation." Hosts at Outback are "engaged in an occupation in which [they] customarily and regularly receive . . . tips because they sufficiently interact with customers in an industry (restaurant) where undesignated tips are common." "... one court has held that a tip pool that benefits a maitre d' is permissible under the FLSA. In Dole v. Continental Cuisine, Inc., 751 F. Supp. 799 (E.D. Ark. 1990), the district court upheld a mandatory tip pool where servers tipped out solely to a maitre d' who 'receives no tips directly from customers' and whose responsibilities included setting up the dining room, greeting and seating customers, serving the first drink to customers, and assisting servers in serving customers as needed."
Etheridge v. Reins International, 91 Cal.Rptr.3d 816: The court explained that "[t]ip pools exist to minimize friction between employees and to enable the employer to manage the potential confusion about gratuities in a way that is fair to the employees."
In the Ninth Circuit, the tip pooling rules apply only when a tipped employee is paid a cash wage of less than the federal minimum wage. "The FLSA does not restrict tip pooling when no tip credit is taken." (See Cumbie v. Woody Woo, Inc., 596 F.3d 577, 582 (9th Cir. 2010).)
For tipped employees, it would not be legal to make deductions from tips toward a "breakage" fund. See the following two cases: