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Category: California Employment Law
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Hello, I worked at a restaurant where the Manager, who

Customer Question

Hello,

I worked at a restaurant where the Manager, who hired & fired, was on salary, was taking part in the employee tip pool. She also worked as the Sommelier. I live in California. Labor law addresses that no "agent" may take part in the tip pool. But, she was also playing a "table side" role.
Which position supersedes which in terms of being able to legally participate in the tip pool or not ? Manager or Somm ?

Also, If I filed a claim would she personally be liable for over a years worth of tips or would the owners who tacitly allowed this ?

Thank you.
Submitted: 2 years ago.
Category: California Employment Law
Expert:  socrateaser replied 2 years ago.

The Division of Labor Standards Enforcement (DLSE) Opinion Letter 1998 12.28-1, provides that: "No employer or agent with the authority to hire or discharge any employee or supervise, direct, or control the acts of employees may collect, take or receive any part of the gratuities intended for the employee(s) as his or her own."

The problem with the above-referenced opinion letter is that the California Courts have held that the DLSE opinion letters, while entitled to some weight, do not represent positive law of the State of California. And, since the issue has never been expressly decided by a California appellate court, it remains arguable as to whether a hiring and firing supervisor would be completely prohibited from sharing in a tip pool.

That said, since DLSE takes the position that the supervisor is prohibited from sharing the tip pool, so if an employee files a wage claim, the employee has the edge, because the wage claim hearing is held by the DLSE administrative law judge.

 

As to liability, the employer is liable, not the supervisor, because under Labor Code Sections 2800 and 2802, an employer must indemnify an employee for any loss caused by a lack of due care or incurred within the scope of employment.

Hope this helps.

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