Employment Law

Employment Law Questions? Ask an Employment Lawyer.

Ask a Lawyer,
Get an Answer ASAP!

Employment Law
This answer was rated:

I own a catering company in Port Orchard WA. Our employees

I own a catering company...
I own a catering company in Port Orchard WA. Our employees earn their above minimum wage for events. We leave gratuity to the discretion of the client. About 30% of clients tip. It is handed to the lead server or PIC at the event or added on to the check for final payment. Every tip gets put in a tip pool and divided out among all employees that contributed to the events. Now in our manual it states how to be tip pool eligible.

One of my employees walked out on the job after disrespect to the PIC. She became not tip eligible for that week. She threatened to go to L and I if I didn't give her earned money.

Who is in the right?
Show More
Show Less
Ask Your Own Employment Law Question
Answered in 1 minute by:
8/23/2013
Brandon, Esq.
Category: Employment Law
Satisfied Customers: 1,953
Experience: Has received a certificate of recognition from the California State Senate for his outstanding legal service.
Verified

Employment-LawExpert :

Hello and thank you for your question today.

Employment-LawExpert :

Are you online with me?

Employment-LawExpert :

Welcome to the chat

Employment-LawExpert :

Tips are considered to be normal wages owed to employees much like their rate of pay would be. A worker and an employer must agree to the deductions in advance and in writing. Any deduction or failure to pay tips cannot reduce the workers final check below the applicable minimum wage.

Employment-LawExpert :

The basic rule of tips is that they belong to employees, not the employer. Employees can't be required to give their tips or any part of them to the company, except as part of a valid tip pooling arrangement. If you were to do this, you would need to make sure that you had such a tip pooling arrangement in place, and that the tips were equally distributed amongst people who normally would receive tips.

Employment-LawExpert :

If you did this, then you are fine.

Employment-LawExpert :

Does that make sense?

Employment-LawExpert :

So, in short, if you are using this as a punishment, or if you are not paying this person minimum wage through the use of a tip credit, then you cannot do this. If in writing in your manual it specifically addresses this issue, then you are fine. However, you state that in your manual it addresses what it means to be tip pool eligible. While this likely protects you, it completely depends on exactly what is said. If this person is working, and you are taking their tips, then you are in the wrong. If this person walked out, and you take their tips, then you are in the right.

Employment-LawExpert :

So, when you state that this person is not tip eligible for an entire week, if this person continues to work, then this would be seen as punishment, and would be seen as taking their wages. In this situation, they could make an unpaid wage claim against you, and they would prevail.

Employment-LawExpert :

Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further. If you do not require any further assistance, I would be most grateful if you would remember to provide my service a positive rating, as this is the only way I will receive credit for assisting you.

Employment-LawExpert :

Have a wonderful rest of your day.

Customer:

It is still very gray to me. I do have a tip pool set up and every one signs that they have read. This is a copy:

Customer:

D) Wage Guidelines


 


Here are a few general guidelines that deal with wage rates and pay increases.


 


1) Each new employee will be hired with a 30-Day training wage, at which time their salary will be evaluated.


2) After completion of Step #1 – there will be no pay increases for the duration of one year.


3) Annual employee evaluations will be conducted to determine if a pay increase is in order.


 


Payday



Your pay period is every two weeks Monday thru Sunday. After Sunday closes, Monday the payroll is run. Payday is every other Thursday. Your check can be picked up between 2 and 4. They do have to be picked up at the office. We will not send out any pay checks. We highly recommend getting direct deposit. Talk to the accountant for your paperwork. You are still able to pick up your pay stub at the office during the office hours, but will get paid no later than Thursday.



Tipping:


 


In our industry, there are many functions at which the employees will be offered a “tip” for exceptional service. The following are guidelines that govern the distribution of tips and their reporting with Essence of the Thymes Catering:


 


1) No tip is “automatic.” Each employee must EARN their tip by working hard, following directions, being respectful to the client, the guests and their event supervisor. It is at the SOLE discretion of the PIC of the event whether an employee has earned a tip for that event. Any behavior that is prohibited by Essence of the Thymes guidelines will automatically cause an employee to be ineligible to receive tips.


2) ALL TIPS ARE POOLED. At Essence of the Thymes’ functions, all tips are pooled and divided among ALL employees (that have earned a tip) that are working in that pay period. It would be unfair to the dish pit crew or loaders, who have worked as hard as the entire crew, to not be tipped simply because they were not visible to the clients. This includes tips collected by the bartenders, valet parkers, servers, on site chef, PIC, etc. At Essence of the Thymes, we are a TEAM, and each event is handled by a TEAM. We all work hard, and we all deserve to be fairly compensated for our exceptional work.


3) All tips, including those from the bar, received in cash, check or credit card form will be divided weekly between all eligible employees and added to your normal payroll check. If you are on payroll that week you are eligible for the tip pool.


4) The tips are divided by your tip share. All employees that work the event get one full share and employees that worked on the events, but were not at the event, get a half share of the tip pool. Employees in their 30 day training wage will receive a half share of the tip pool.


5) All tips are divided through payroll. Only payroll employees are eligible. Cash tips received at the event whether slipped into your pocket, in an envelope, etc. must be turned into the PIC prior to leaving. The amount gets written on the clock in sheet by the PIC and the accountant divides it up appropriately.


6) Policy for tips sent in after the event: If a tip comes before Monday, it will still make it on the correct pay period. If the tip is given after the pay period is closed, then the accountant will issue the tips on the following paycheck, but with the correct eligible employees.


7) 6) Tip Jars: It is a reasonable expectation to both bartenders and bar patrons for the bartender to have available a “tip jar” for their exceptional service. However, due to the nature of our business, a “tip jar” on the bar would be either an insult to the client, or in poor taste. It will be at the discretion of the PIC whether the bartender will be allowed to make available a “tip jar.” In general, Essence of the Thymes catering prohibits the use of a tip jar since the client has provided/supplied the alcohol. No bartender will make a tip jar available without an express permission from the PIC, and when used these tips WILL be included in the pool of tips from other sources for the evening.


 


 


 

Employment-LawExpert :

Please give me a few moments to read this. Additionally, during the week where she is not tip pool eligible, is this person working through the rest of the event?

Customer:

I guess that it can be considered a punishment but I saw it as unearned since she did not hit the requirements

Customer:

She did not complete the event

Employment-LawExpert :

Actually, upon reading your policy, there are a number of problems.

Employment-LawExpert :

While I realize that you are trying to do something that is fair in this regard, it does not necessarily mean that it is legal.

Employment-LawExpert :

Please read the following document put out by the department of labor.

Employment-LawExpert :

http://www.dol.gov/whd/regs/compliance/whdfs15.htm

Employment-LawExpert :

In short, it very clearly states that any valid tip pool may not include any employees who do not customarily and regularly receive tips.

Employment-LawExpert :

I agree with you that you all work hard, and that everyone should be compensated, but unfortunately, that is not how the law works.

Customer:

Are you referring to the dishwashers/loaders etc?

Employment-LawExpert :

correct

Employment-LawExpert :

basically anyone who would not normally receive a tip

Employment-LawExpert :

Please tell me if that clears it up for you or if it makes you more confused and why

Customer:

Our business is unique in the sense that laws are written for restaurants with normality. With our business, it is not customary or regular, we are all caterers, Everyone serves, dishwashes, loads, and it is up to me (the one scheduling to decide what they do that day). Which to me (and them) would end up feeling like punishment to do those un tipped jobs.

Employment-LawExpert :

The types of people covered would be those who would fall under this category "Cash tips received at the event whether slipped into your pocket, in an envelope, etc. must be turned into the PIC prior to leaving."

Employment-LawExpert :

so if they would fall in that category, they can receive a tip.

Employment-LawExpert :

If you give them a floating job, that allows them to be in that situation, they can receive a tip

Customer:

Does it make a difference that for this specific case that it was not handed to the employees, but added to the final bill and given to the PIC (which was not the employee were talking about).

Employment-LawExpert :

No that makes no difference. It does not have to be handed each time, just that they would be of the type of employee that can be handed a tip

Employment-LawExpert :

So, if working, and they fall under that category, then they must be part of the tip pool

Employment-LawExpert :

you cannot deny them that. However, if they were to walk off, then they could be denied for that day

Customer:

Ok I super appreciate this! Is there any recommendations you have for making changes to the manual to keep it fair but legal?

Employment-LawExpert :

Just make sure you define who can get tips, and specifically reference events such as this, where an employee can loose their right to the tip pool if they leave early.

Employment-LawExpert :

You can use the link I gave you to the DOL as a good guideline.

Employment-LawExpert :

Does that fully answer your question today? If not, please do not hesitate to ask any other questions you have especially if you need clarification on anything i have said. I strive to provide excellent service, so I want to make sure that you feel you have been provided that before you leave today.

Customer:

You were great! Am I over stepping by asking if you have any reference for an attorney in the Port Orchard WA area in business law or employment law

Employment-LawExpert :

Unfortunately, providing a direct referral is against the terms of service of the site, however, if you decide to hire an attorney a great resource is www.Martindale.com. This is a nationwide directory that is useful in finding highly qualified legal specialists in various fields of law. The lawyers in Martindale are not selected because they paid to be included, but rather because they have been rated by other attorneys as qualified experts in their field. Consider consulting with two or three different attorneys willing to take your case prior to selecting the one you feel most comfortable with.

Employment-LawExpert :

Or I should not say take your case, but rather, do whatever it is you need them to do :)

Customer:

Perfect, I don't have a case at this time :) Just need constant assistance with the clarification of the law. Thanks again

Employment-LawExpert :

Not a problem. Have a wonderful rest of your day.

Brandon, Esq.
Category: Employment Law
Satisfied Customers: 1,953
Experience: Has received a certificate of recognition from the California State Senate for his outstanding legal service.
Verified
Brandon, Esq. and 87 other Employment Law Specialists are ready to help you
Ask your own question now
Ask Brandon, Esq. Your Own Question
Brandon, Esq.
Brandon, Esq.
Brandon, Esq., Lawyer
Category: Employment Law
Satisfied Customers: 1,953
1,953 Satisfied Customers
Experience: Has received a certificate of recognition from the California State Senate for his outstanding legal service.

Brandon, Esq. is online now

A new question is answered every 9 seconds

How JustAnswer works:

  • Ask an ExpertExperts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional AnswerVia email, text message, or notification as you wait on our site. Ask follow up questions if you need to.
  • 100% Satisfaction GuaranteeRate the answer you receive.

JustAnswer in the News:

Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.

What Customers are Saying:

I must thank you all for such a positive and knowledgeable Expert in your Employment Law category. She has provided much relief and answers for me in the midst of dealing with a case. I am totally pleased with her customer service and care.

MildredWashington, DC

Excellent direction from Socrateaser to help me preserve and pursue my rights as a proud American who has become unemployed in this messed-up economic downfall. Thank you

Happy CustomerDenver, CO

Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises!

Gary B.Edmond, OK

My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer.

EricRedwood City, CA

I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight.

MichaelWichita, KS

PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent.

Three H.Houston, TX

Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!!

ElaineAtlanta, GA

< Previous | Next >

Meet the Experts:

Tina

Tina

Lawyer

8,184 satisfied customers

JD, BBA, recognized by ABA for excellence.

Allen M., Esq.

Allen M., Esq.

Employment Lawyer

12,480 satisfied customers

Employment/Labor Law Litigation

Marsha411JD

Marsha411JD

Lawyer

12,264 satisfied customers

Licensed Attorney with 29 yrs. exp in Employment Law

Infolawyer

Infolawyer

Lawyer

11,887 satisfied customers

Licensed attorney helping employers and employees.

JB Umphrey

JB Umphrey

Lawyer

6,273 satisfied customers

Assisting employees and employers for over 14 years.

John

John

Employment Lawyer

3,773 satisfied customers

Exclusively practice labor and employment law.

Dimitry K., Esq.

Dimitry K., Esq.

Attorney

3,007 satisfied customers

I provide employment and discrimination law advice in my own practice.

< Previous | Next >

Related Employment Law Questions
Can my supervisor reduce my pay i only work 24 hrs.a week
can my supervisor reduce my pay i only work 24 hrs.a week and bring home $355.00 every other week i cannot make ends meet. … read more
LegalPro54
LegalPro54
Doctoral Degree
1,258 satisfied customers
We just opened a independent car dealership in TN, can sales
we just opened a independent car dealership in TN, can sales people be commission only? Or if they dont sell something can they receive no compensation? … read more
Legal Eagle
Legal Eagle
Attorney
Doctoral Degree
5,967 satisfied customers
Just bought restaurants in Louisville area. Trying to figure
Just bought restaurants in Louisville Ky area. Trying to figure out for sure what the Minimum Wage for where I'm located is. This seems like a relatively simple question that HR, payroll, and google s… read more
Barrister
Barrister
Attorney/Landlord/Realtor
Doctoral Degree
34,665 satisfied customers
I am employing a person at a client of mine - I have a
Hello - I am employing a person at a client of mine - I have a staffing company. That person is a high-level marketing person. She said that in the 'creative' industry, it's common to be paid a daily … read more
LegalPro54
LegalPro54
Doctoral Degree
1,258 satisfied customers
I work at a hotel in Alaska. If a guest doesn't pay for
I work at a hotel in Alaska. If a guest doesn't pay for their room can my employer legally make the employee pay for the room? Also, same with the restaurant, if a customer walks out does the employee… read more
ScottyMacEsq
ScottyMacEsq
Doctoral Degree
17,094 satisfied customers
Can nurses be paid just a visit rate for each home health
Can nurses be paid just a visit rate for each home health visit they make or is the total time spent still compensable … read more
LegalPro54
LegalPro54
Doctoral Degree
1,258 satisfied customers
Are you familiar with commission based pay? No base salary,
are you familiar with commission based pay? No base salary, just commission of services (dog groomer) … read more
LegalPro54
LegalPro54
Doctoral Degree
1,258 satisfied customers
I left my job yesterday after giving two weeks notice. i
hello, i left my job yesterday after giving two weeks notice. i have a bi-weekly draw of $3,000 against commission and since I was training my replacement my commission this month did not exceed my dr… read more
socrateaser
socrateaser
1,031 satisfied customers
Live in Florida, can an employer just pay me minimum wage
Live in Florida, can an employer just pay me minimum wage for my last paycheck even if I was suppose to get paid more … read more
Allen M., Esq.
Allen M., Esq.
Employment Lawyer
Juris Doctor, Cum Laude
12,480 satisfied customers
I own a yoga studio and have a policy that when students
I own a yoga studio and have a policy that when students show up for class and there is no class that I credit them a free class. However, this costs me money to do so. Can I transfer that cost to the… read more
LegalPro54
LegalPro54
Doctoral Degree
1,258 satisfied customers
I want to know how much is minimum wage for a part time
I want to know how much is minimum wage for a part time salaried employee in California … read more
ScottyMacEsq
ScottyMacEsq
Doctoral Degree
17,094 satisfied customers
Although there is a Federal minimum wage on salaried
Although there is a Federal minimum wage on salaried employees. Does the law apply in the state of Texas? … read more
Infolawyer
Infolawyer
Lawyer
Doctoral Degree
11,887 satisfied customers
I am a dental hygienist, and the new dentist I am working
Hi. I am a dental hygienist, and the new dentist I am working for wants to pay me $320 a day ($40 per hour) if I see 7 or 8 patients in one day. However, he only wants to pay me $40 per patient if I s… read more
LegalPro54
LegalPro54
Doctoral Degree
1,258 satisfied customers
Ray? Thanks! A couple questions: 1. When those holding
Ray?Thanks! A couple of follow up questions: 1. When those holding companies will start receiving the income, will there be a requirement to pay her a salary as she is a CEO? Are there any minimum wag… read more
Ray
Ray
Lawyer
Doctoral Degree
30,259 satisfied customers
Can an employer have an agreement with new hires that if
Can an employer have an agreement with new hires that if they quit within 7 days of hire their status becomes voluntary and they are not paid for the 1 - 7 days of training? … read more
Ray
Ray
Lawyer
Doctoral Degree
30,259 satisfied customers
I need help understanding the minimum wage law for
I need help understanding the minimum wage law for server/cashier at a restaurant who makes tip. Can you help me understand the section below?§ 146-1.3. Tip credits. An employer may take a credit towa… read more
John
John
Employment Lawyer
Doctoral Degree
3,773 satisfied customers
What is the minimum wage in the USA_ and what is the general
Hi. What is the minimum wage in the USA_ and what is the general salary for a manger in a small shipping buisness … read more
John
John
Employment Lawyer
Doctoral Degree
3,773 satisfied customers
Are elected officials exempt from minimum wage laws, no, a
are elected officials exempt from minimum wage laws … read more
ScottyMacEsq
ScottyMacEsq
Doctoral Degree
17,094 satisfied customers

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

Show MoreShow Less

Ask Your Question

x