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Joseph
Joseph, Lawyer
Category: California Employment Law
Satisfied Customers: 5036
Experience:  Extensive experience representing employees and management
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Is my manager allowed to take my tips?

Customer Question

Is my manager allowed to take my bar customers' orders under her name and collect the tips if I did a good share of running food, refilling drinks and busing the table? Side note: we do not pool our tips at this restaurant.

Submitted: 11 months ago.
Category: California Employment Law
Expert:  Joseph replied 11 months ago.
Hello,

I'm sorry to hear about your situation and hope I can help.

My name is Joseph, I am a licensed attorney, and my goal is to provide you with excellent service today.

I need a bit more information from you before I can proceed to provide you with a complete and thorough answer to your question.

Is the manager acting as the 'sever'? Taking the order for a table and delivering food?
Customer: replied 11 months ago.

Acting, yes, while being paid a salary. It's not as if she clocked in as a server to be paid hourly when she does this.

Expert:  Joseph replied 11 months ago.
Hello Tasha,

The fact that she is not separately clocked in as a server when she is taking tips from tables that are (normally) assigned to you is not determinative of whether she would be able to take the tips or not.

If you do not have tip pooling arrangement with your employer, the tips should be going to whoever is performing the primary duty as a server. If your manager is taking the orders and delivering the food, she would be their server (even if she is also a manager) and can receive the tips for that service.

However, it would definitely be illegal for your manager to just seize your tips and not distribute them to you or other employees.

If that is the case, you can and should file a wage claim against your employer with the Department of Industrial Relations, Division of Labor Standards Enforcement.

You can do so using the information available online here:

http://www.dir.ca.gov/dlse/howtofilewageclaim.htm

I realize the above information is not what you wanted to hear and I sincerely wish I had better news to give you, but I hope you appreciate an honest and direct answer to your question. It would be unprofessional of me and unfair to you to provide you with anything less.

Please let me know if you have any follow up or clarifying questions as I want to ensure that you are completely satisfied with my service. Please contact me first if you are contemplating leaving me a negative rating, as I’ll be happy to continue to address your concerns until you are completely satisfied with my service.

If not, please remember to rate my answer positively so I get credit for my work.

Thanks and best of luck!

-Joseph
Customer: replied 11 months ago.

What if customers intended the tips for me? For example, there is a regular who knows my manager personally and knows that she is not an hourly earning server, but a manager. When she takes their order, it is me who delivers their food, refills their drinks, and cleans up after them. This regular customer asked if we pool our tips, because he wanted to make sure that I get the full sum of the tip.

Expert:  Joseph replied 11 months ago.
This case would definitely go in your favor in that regards.

http://www.cbc.ca/news/business/starbucks-assistant-managers-not-entitled-to-tips-court-rules-1.1300520

Although there's no California case on point as of yet. But it definitely suggests that managers aren't entitled to tips regardless.

Unfortunately, it doesn't matter whether the customer intends the tip for you. As, for instance, baristas at star bucks must pool their tips even if a customer offers one of the baristas a direct tip.
Expert:  Joseph replied 11 months ago.
Hello Tasha,

Just wanted to check in to see if you had any follow up or clarifying questions regarding the above information.

If not, please remember to rate my answer positively so I get credit for my work!

Thanks and best of luck!

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