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attyadvisor
attyadvisor, Attorney
Category: Employment Law
Satisfied Customers: 6431
Experience:  29 years in Employment Law
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On my last week of work (I put my two weeks in and

Customer Question

On my last week of work (I put my two weeks in and resigned), I was working a banquet party and the host pre-paid and pre-tipped 20%. At the end of the party he signed his check and tipped an additional amount. I received my tips the very next day and automatically put it in the bank. A few days later the host calls the restaurant and tells my manager that he was drunk and did not mean to tip an additional amount and that he wants that money back. My manager then tells my co-workers and I that we have to pay that back. I thought a receipt was kind of like a contract.. you read it over and sign it. It's like agreeing to pay for that amount. I personally don't believe that it's my responsibility to pay it back out of my own pocket. So I go back to my old job to pick up my last check and my last tips and I noticed that they opened my tip envelope without my consent and without telling me and took the money out. I don't work for the company anymore so I thought that technically I don't have to owe them anything. Is this legal? And is there anything that I can do?
Submitted: 7 months ago.
Category: Employment Law
Customer: replied 7 months ago.
I live in Las Vegas, Nevada if that helps. Also, the money that they took out of my tip envelope wasn't even from that night of the banquet party.
Expert:  attyadvisor replied 7 months ago.

Welcome to JA and thank you for your question. I will be the Attorney that will be assisting you.

Expert:  attyadvisor replied 7 months ago.

The answer would depend on any employee policies that are or where in place when you worked for the company. Is there a policy handbook? Is there a Human Resources Department?

The particular policies of your Employer come into play to answer your question. This is an overview of the law in Nevada.

“When you receive tips as part of your compensation, your legal rights under wage and hour laws become a bit more complicated. The rules about what counts as a tip, how much your employer must pay you, and whether you have to contribute to a tip pool (among other things) all depend on the laws of your state. Although federal law also covers these issues, employers must follow whichever law – federal, state, or even local – is the most generous to employees.

Here's what you need to know about federal and Nevada legal protections for employees who receive tips. You can find out more about Nevada minimum wage, tip rules, overtime standards, and other wage and hour issues at the Nevada Office of the Labor Commissioner.

Tip Basics

The basic rule of tips, under federal law and state law, is that they belong to the employee, not the employer. Employers may not require employees to hand over their tips unless one of these exceptions applies:

  • State law allows the employer to take a tip credit. Some states allow the employer to count all or part of an employee’s tips towards its minimum wage obligations. Although the employer doesn’t technically “take” the employee’s tips, the employer gets to count some tips as if the employer had paid them directly to the employee. Nevada does not allow employers to take a tip credit, however.
  • The employee is part of a valid tip pool. Under federal law and in most states, employees can be required to pay part of their tips into a tip pool to be shared with other employees.

Tip Pooling

Many states, including Nevada, allow employers to require tip pooling or “tipping out.” All employees subject to the pool have to chip in a portion of their tips, which are then divided among a group of employees. The employee must be able to keep at least the full minimum wage. (In other words, if the employer takes a tip credit, the employer can count only the tips the employee gets to take home against its minimum wage obligation.)

Nevada courts have upheld mandatory tip pooling policies, as long as the employer does not keep any tips for itself. All tips in the pool must be distributed to employees.

What Counts as a Tip?

It's not as easy as you might think to figure out exactly how much of what a customer pays is a "tip." If the customer pays in cash and tipping is voluntary, whatever amount the customer leaves over and above the charge for products or services (plus tax) is a tip. However, if the employer imposes a mandatory service charge, or the customer pays by credit card, the rules might be different.

The rule applies only to mandatory service charges. For the amount to count as a tip rather than a service charge, all of the following must be true:

  • The payment must be entirely voluntary
  • The customer must have the unrestricted right to determine the amount
  • The amount cannot be set by employer policy or subject to negotiation with the employer.
  • The customer must have the right to determine who receives the payment.”

http://www.nolo.com/legal-encyclopedia/nevada-laws-tipped-employees.html

This is the Nevada Statute that deals with tips

NRS 608.160  Taking or making deduction on account of tips or gratuities unlawful; employees may divide tips or gratuities among themselves.

1.  It is unlawful for any person to:

(a) Take all or part of any tips or gratuities bestowed upon the employees of that person.

(b) Apply as a credit toward the payment of the statutory minimum hourly wage established by any law of this State any tips or gratuities bestowed upon the employees of that person.

2.  Nothing contained in this section shall be construed to prevent such employees from entering into an agreement to divide such tips or gratuities among themselves.

[1:17:1939; 1931 NCL § 2826] + [2:17:1939; 1931 NCL § 2827] — (NRS A 1967, 623; 1971, 1263; 1973, 644)

https://www.leg.state.nv.us/nrs/NRS-608.html#NRS608Sec160

So the answer is that unless you have an agreement with your employer wherein you have agreed to the employer receiving, pooling or otherwise dividing tips, the tips belong to the employee.

My suggestion would be filing a complaint if no such agreement exists with your employer.

“The Office of the Labor Commissioner is responsible for administering Nevada's wage-and-hour laws. If you have a complaint under Nevada's wage-and-hour laws, you must first make a good faith effort to try to resolve the issue with your employer. If that effort fails, you can file a complaint by filling out a Claim for Wages form. Bring or mail the form to one of the addresses listed for the Labor Commission (see below); do not e-mail or fax them. The Office of the Labor Commissioner also suggests that you include copies of check stubs, time records, receipts, the names and addresses of your managers and supervisors, owners, or officers of your employer. You should also bring a list of any witnesses who could testify for you, as well as any other information that you think might be helpful. The Labor Commissioner has the authority to conduct hearings and issue binding decisions, which can be enforced in a state court.” http://www.workplacefairness.org/wage-hour-claim-NV

I would also have expected to retain the tip that was provided above and beyond the contract amount. Great excuse to want your money back…(I was drunk and did not intend to tip)

Expert:  attyadvisor replied 7 months ago.

Please do not hesitate to ask me any additional questions that you may have with regard to this matter as it would be my pleasure to assist you.

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