WHAT IS TIP OR GRATUITY?
The definition of “Gratuity” according to the Labor Code is referred to as a “tip, gratuity, or money that has been paid or given to or left for an employee by a patron of a business over and above the actual amount due for services rendered or for goods, food, drink, articles sold or served to patrons.”
EMPLOYERS AND THEIR AGENTS CAN’T SHARE TIP OR GRATUITY:
California Labor Code Section 351 and IWC Wages orders prohibits your employer and its agents such as your employer’s managers, supervisors, etc. from sharing in or keeping any portion of a gratuity left for or given to you or other co-workers by a patron. Furthermore, it is illegal for your employer to offset or make wage deductions from gratuities, or from using gratuities as direct or indirect credits against your wages. California law further states that gratuities are the sole property of “the employee or employees to whom they are given”.
Additionally, tip pooling cannot be used to compensate your employer, manager(s), or supervisor(s) of the business, even if these individuals directly participate and provide direct table service to a patron.
WHEN ARE TIPS OR GRATUITY DUE FOR PAYMENT TO EMPLOYEE?
If your employer’s customer uses a credit card as a payment method to pay for amount due including tips, the gratuity portion that belongs to you must be paid to you no later than the first next regular payday following the date the customer authorized the credit card payment. Your employer may not make any deduction for credit card processing fees or costs that are charged to the employer by the credit card company from gratuities paid to the employee.
INVOLUNTARY TIPS ALLOWED TO BE POOLED BY EMPLOYERS
California Law allows involuntary tip pooling in the restaurant business. Your employer can require you to share your tips with other coworkers who provide “direct table service”. Employees who provide direct services, include waiters and waitresses, busboys, bartenders, and host/hostesses. Employees who do not provide direct service share in the tip pool include dishwashers, cooks, and chefs. In case the chefs in the restaurant prepare the food at the patron’s table, in which case the chef may participate in the tip pool. Additionally, tip pooling cannot be used to compensate your employer, manager(s), or supervisor(s) of the business, even if these individuals should provide direct table service to a patron.
MANDATORY SERVICE CHARGE IS NOT TIPS CHARGED BY EMPLOYER
Tips and Gratuity are voluntary amount left by a patron for an employee. A mandatory service charge is an amount that a patron is required to pay based on a contractual agreement or a specified required service amount listed on the menu of an establishment.
An example of the 10% or 15% mandatory service charge in which your employer’s customer agreed to pay and added to the cost of the service provided by your employer. Such charges are considered as amounts owed by the patron to your employer, as such these charges are not gratuities or voluntarily left by the patron to you. Therefore, when your employer distributes all or part of this service charge to its employees, the distribution may be at the discretion of your employer and the service charge, which would be characterized as form of bonus since this amount paid by your employer it would be included in your regular pay rate when calculating your overtime payments.
YOUR EMPLOYER CAN’T DEDUCT TIPS FROM YOUR PAYCHECK
According to California law, your employer must pay you at least the minimum wage required by law in addition to any tips left for you by patrons. Your employer can neither take any part of your tips, nor deduct money from your wages because of the tips you earned. Therefore, your employer cannot credit your tips against the money your employer owes you or use your tips as a credit towards your employer’s obligation to pay you the minimum wage.
TIPS SHOULD NOT BE INCLUDED IN YOUR REGULAR PAY RATE FOR THE PURPOSE OF CALCULATING OVERTIME
Since tips are voluntarily left for you by your employer’s customer and are not being paid by your employer, such amount is not considered as part of your regular pay rate for the purpose of calculating your overtime pay.
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