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Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Employment Law
Satisfied Customers: 41221
Experience:  I provide employment and discrimination law advice in my own practice.
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My question is about tip pooling/sharing. I live in Seattle

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My question is about tip pooling/sharing. I live in Seattle if that's at all relevant. Our owner constructed a tipping policy that included management as well as back of the house employees. At tge end of our shift we had to fill out a sheet with our sales and tip out each work group based on our shift sales. A few weeks ago a letter was sent to the owner questioning the legality of the practice based on field assistance bulletin 2012-2 and FSLA sheet number 15. His response was that we as a staff were to cone up with new tipping guidelines that were within the confines of WA state and federal law. Therefore we held a discussion and proceded with a ballot that included only front of house support staff positions. We thought all was well. Then at an employee meeting he announced, actually used the word pleading, asking us to still include the BOH as part of our tip policy because he couldn't afford to pay them proper market value wages. His argument is that our policy is a "tip share" and that as long as he gives us the option to opt out if it, he can still ask u's to institute it as part of our policy. So he still wants a formal written proposal that includes the BOH and then give us the option to opt out. However, he has stated that opting out would result in bad blood between the FOH and BOH, decrease revenue and tge eventual demise of the restaurant would be our fault.
In my opioninn, having tips collected in this nature is coercion by peer pressure:/ Can he ask us to take a vote on whether or not to tip the BOH simply by giving us the theoretical option to opt out if we disagree? Is it okay that he blatantly said he under pays the BOH and is asking us to subsidize thier wage?
Thank you for your question. Please permit me to assist you this evening.

This does appear to be coercion. Does he still pay his management a salary that is minimum wage or above?
Customer: replied 3 years ago.
Yes, the management isn't the problem, he has decided we were correct in not wanting to tip them out, the question is weather or not he can ask us to "share" our tips with the kitchen staff because "he cannot afford to pay them enough"

Thank you for your follow-up.

In a very blunt comment, that is ultimately his problem as owner, not yours. You do not have to share, and being coerced to share would permit you to file a grievance with your local department of labor. It is really that clear-cut. While he can 'ask' you all he wants, he cannot institute a policy and if he does, it would violate state law. Since he cannot demand that you take part in such a policy, he likewise cannot retaliate against you if you refuse to do so. Should he do so, that may again be a potential violation, and one that can be reported to the EEOC (Equal Employment Opportunity Commission). He is the employer and he can terminate or discipline at any time without cause, but he cannot retaliate or demand behavior from you that violates the law. The moment he does, he crosses the line and you and your fellow employees could potentially have a cause of action. Then, regardless of he cannot afford to pay them enough, he may end up being unable to pay anyone enough due to the potential fines and lawsuits that he would expose himself to. I am not advocating or suggesting an argument with owner, not at all, just explaining what he can ask of you and what would cross the line.

Good luck.

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