Tag Archives: tip pool

New York High Court To Hear Oral Argument In Closely Watched Starbucks Appeal

On May 28, 2013, New York’s highest state court, the New York Court of Appeals, will hear oral argument regarding the scope and application of New York Labor Law 196-d and its tip splitting provisions to Starbucks’ tip pooling practices. The court’s analysis of these issues, which came to the court as certified questions from the … Continue Reading

Florida Federal Court Holds Kitchen Chef Improper Tip Pool Participant

The FLSA regulates tip pool participation by limiting pool participants to employees who are “customarily and regularly tipped” as set forth in DOL guidance and interpreted by the courts. While the role of different positions in the service process (going to the question of whether they are “customarily and regularly” tipped) can be hotly contested, the … Continue Reading

Colorado Federal Court Upholds Inclusion of Employee Performing Expediting Function In Tip Pool

Employers who maintain a tip pool are likely aware that, depending on the employer’s state of operation and prevailing law, such a tip pool typically can consist only employees who are both “customarily and regularly” tipped and who are not themselves “employers” or those with employer authority. Last year, we discussed a court’s recognition of the … Continue Reading

District Judge Rejects Server’s Effort to Exclude Food Runners From Tip Pool

Tip pool participation under the FLSA, like classification of employees as exempt or non-exempt, turns on the duties of those participating in the tip pool, not their job titles. An example of this analysis is a recent Florida federal court decision rejecting a plaintiff server’s  challenge to the inclusion in the tip pool at a Ruth’s Chris Steak … Continue Reading

Texas Court Holds “Service Bartenders” May Be Eligible To Participate In A Mandatory Tip Pool Under FLSA

The FLSA and state law often both regulate the distribution of tips. See here. Under the FLSA, an employer can require all “customarily tipped employees” to pool tips generally or require a specific “customarily tipped employee” to share tips with another “customarily tipped employee.”  Disputes often arise as to whether an employee is a “customarily tipped employee” … Continue Reading

Chicago Federal Court: Silverware Roller May Participate In Tip Pool

As discussed here, Section 3(m) of the FLSA (like many state laws) places restrictions on which employees within a workforce can receive and share in tips. While the FLSA permits tip pooling “among employees who customarily and regularly receive tips," litigation in the hospitality industry often centers around the legality of tip pool participation by restaurant … Continue Reading

Southern District of New York Judge Ratifies Legality of Participation in Tip Pool By Captains and Banquet Coordinator

While the New York State Department of Labor’s new Hospitality Industry Wage Order clarified many wage and hour issues for industry employers, the appropriateness of tip pool participation of certain categories of employee continues to be an area of uncertainty. On January 13, 2011, Federal District Judge Laura Taylor Swain granted summary judgment to Manhattan restaurant … Continue Reading

How Broad is the Ninth Circuit’s Woody Woo Decision?

The Ninth Circuit Court of Appeals recently ruled that the FLSA does not restrict employer-mandated tip-pooling arrangements when no tip credit is taken by the employer against the minimum wage obligation.  Cumbie v. Woody Woo, Inc., et al., No. 08-35718 (9th Cir. Feb. 23, 2010).  Further, the Court rejected the DOL’s regulation at 29 C.F.R. … Continue Reading

New York State Wage Board Approves Revised Hospitality Industry Wage Order

The following report is sent to us from Richard I. Greenberg and Felice B. Ekelman The New York Department of Labor’s 2009 Restaurant and Hotel Industry Wage Board has submitted its Report and Recommendations to consolidate the individual wage orders for the restaurant and hotel industries into a single Hospitality Industry Wage Order.  Commissioner of … Continue Reading
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