On Tuesday, a federal appeals court (9th Circuit Court of Appeals) ruled that businesses could not enforce a policy of tip sharing amongst workers even if their tipped employees are paid minimum wage. The ruling upheld a 2011 U.S. Labor Department rule in a 2-1 decision. In upholding the rule, the 9th Circuit noted that it was “reasonable” and appropriately consistent with the Congress’s goal to make sure that tips stay with employees who received them for their service.
Definitions to Know: What is “Tip Sharing Among Workers?”
When employers, supervisors or businesses collect tips that are left by customers for their waiters, casino dealers or other service employees that are then “shared” with backend support staff (i.e. dishwashers, bussers, hosts, etc.)
The 9th Circuit overturned district courts in both Nevada and Oregon. The ruling largely applies in those states where employers are required to provide workers with minimum wage in addition to any tips received: California, Washington, Oregon, Nevada, Montana, Minnesota, and Alaska. Previously, the labor department banned employers from using the distribution of “shared tips” to employees who do not normally receive tips (i.e. backend workers).
The basis for this legislation is that the tip received never belongs to the employer and therefore the employer does not have the authority or right to take it and redistribute it – it is not the employer’s money. Those in support of the rule prohibiting tip sharing urge employers to turn to higher pay for backend employees instead of using “tips” from other staff to subsidize a low pay rate.
While, the discussion of tip sharing is far from over, those in support of the 2011 U.S. Labor Department rule preventing enforced policies of tip sharing amongst workers, see this ruling as a move in a positive direction. Others question the effect that this movement will have on the pay of backend workers who depended upon the additional cash to supplement their income.
If you have questions regarding the legality of company policies such as tip sharing amongst workers, get in touch with the experienced southern California employment law attorneys at Blumenthal, Nordrehaug & Bhowmik.