Can a person acting in an unofficial managerial capacity take tips?

UPDATED: Oct 1, 2022

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Can a person acting in an unofficial managerial capacity take tips?

We have a bartender at my restaurant that I work at who has managerial

functions, has authority over others behind the bar and basically runs the

bar. He does not technically have a manager title but has all the responsibilities. His hourly pay is higher than the others and he also still

collects tips. Is this legal for him to collect tips? I might add that he is also intimate with one of the other bartenders. Is this legal?

Asked on July 27, 2018 under Employment Labor Law, California


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

As long as, despite any and all other issues, he also functions in a tipped capacity--so, in this example, as a bartender--then he can get a share of tips. All that matters from a legal perspective is whether he has a tipped customer service job (bartender, waiter, busperson, etc.) or not. If he does, he is entitled to the same tipes that any other bargender, etc. gets. That is paid more than other servers does not matter--nothing says all employees have to paid the same. And whether he is intimate with another bartender might in some contexts give rise to a sexual harassment or discrimiantion claim, but does not affect tipping.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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