Can a restaurant manager, also working as a bartender/waiter, collect tips given to him by a patron?

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Can a restaurant manager, also working as a bartender/waiter, collect tips given to him by a patron?

I am not talking about tip pooling but if the manager (salary) also does bar tendering and is a server on the schedule to be a server, can he collect tips given to him by a patron? Can an working as a bartender collect tips given to him by a patron?

Asked on October 10, 2010 under Employment Labor Law, California

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

While the manager is working in a customer-service position--as an actual formal job or part of his overall job; i.e. not merely filling for a few minutes when things are busy--he can collect tips. The fact that he cannot collect them while wearing his managerial hat does not mean he can't receive them when in a position or performing a role that is tipped. As a practical matter, it is probably easy to transgress and collect when he should not; but if he only collects them during times that he is formally scheduled to work as a bartender or server and actually does that work (e.g. he's not pencilled in as a server while not in fact serving) he would be ok.

The other potential issue is that if, as manager, he is normal exempt from overtime, if he serving, etc. becomes his primary (more or less than 51%) part of his job, he would lose the overtime exemption.


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