Waitress Waiter Server Bartender: Can my employer use my tips as a credit toward its obligation to pay me the minimum wage?
No. An employer may not use an employee’s tips as a credit toward its obligation to pay the minimum wage.
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The minimum wage provisions of the Federal Labor Standards Act (FLSA) differ significantly from California’s minimum wage law. FLSA requires payment of minimum wage to employees who in any work week are engaged in commerce. In contrast, Lab. Code, § 1194, subd. (a), provides that any employee receiving less than the legal minimum wage is entitled to recover the unpaid balance of the full amount owed. Armenta v. Osmose, Inc., 135 Cal. App. 4th 314
To be at fault within the meaning of Lab. Code, § 203, an employer’s refusal to pay need not be based on a deliberate evil purpose to defraud workmen of wages which the employer knows to be due. As used in § 203, “willful” merely means that the employer intentionally failed or refused to perform an act which was required to be done. Armenta v. Osmose, Inc., 135 Cal. App. 4th 314.
Labor § 10—Regulation of Working Conditions—Wages—Employer-mandated Tip Pooling.
In an action by a waitress for wrongful discharge, in which she alleged she was fired for refusing to share her tips with the employer’s busboys, the trial court did not err in granting summary judgment for the employer. Employer-mandated tip pooling among employees is not prohibited by Lab. Code, § 351 (employer may not take gratuity left for employee). Such pooling is not a prohibited “taking” within the meaning of that section. The waitress’s argument to the contrary assumed that the entire tip left by the patron was the waitress’s personal property, but it is nearly impossible to determine the intent of departed diners in leaving a tip, and the statute declares the tip to be the property of the “employee or employees.” Were restaurant employers prohibited from administering tip pooling for equitable distribution of tip income, the gratuity could be picked up and appropriated by the first employee to reach the table after the diner departed. An employer-mandated tip-pooling policy is one of common sense and fairness, and protects the public, the employees, and the employer. Leighton v. Old Heidelberg, Ltd., 219 Cal. App. 3d 1062
Labor § 10—Regulation of Working Conditions—Wages—Tips—Statutory Intent.
The legislative intent reflected in the history of Lab. Code, § 351, prohibiting an employer from taking a gratuity left for an employee, was to insure that employees, not employers, received the full benefit of gratuities that patrons intend for the sole benefit of those employees who serve them. Thus an employer may not reduce, either directly or indirectly, the employer’s minimum wage obligation by virtue of tips received by an employee, and employers may not pay tipped employees a subminimum wage. Leighton v. Old Heidelberg, Ltd., 219 Cal. App. 3d 1062
Labor § 10—Regulation of Working Conditions—Wages—Tips—Split Shift Premiums—Validity of Waiver.
In an action by a waitress for wrongful discharge in which she sought to recover unpaid split shift premiums, the waitress failed to create a triable issue of fact on the employer’s motion for summary judgment by declaring that an affidavit she had signed under penalty of perjury was false and that she was forced to sign it as a condition of her employment. The affidavit constituted a waiver of the split shift premiums; it stated that the waitress’s services were available to the employer only during its luncheon and dinner business and not during any hours between, and that she had family and other obligations that prevented her from working during the afternoon hours. The waitress may have lied to the employer and the affidavit may have been false, but there was no evidence of any coercion. The only reasonable inference from the affidavit, her deposition, and her declaration in opposition to the summary judgment motion was that when the waitress switched from night work and started working lunch and dinner, she decided she did not want to work in the afternoons and told the employer she was unavailable to work the hours between the two shifts, even though she was actually available. The employer, believing her, presented her with the affidavit to sign in order to protect itself. Leighton v. Old Heidelberg, Ltd., 219 Cal. App. 3d 1062