Does labor law prohibit employers and employees who do not take a tip credit from participating in a required tip-pooling arrangement?

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Does labor law prohibit employers and employees who do not take a tip credit from participating in a required tip-pooling arrangement?

More specifically, in an establishment where a tip pool is required of all front-of-house employees and where the tip pool consists of a range of employees who receive tips and who take a tip credit, support staff who are not believed to take a tip credit, bartenders who receive more than minimum wage and a salaried manager who claims that it is legal to participate because he “sells wine,”. Does this appear to be a valid tip-pooling arrangement under FLSA and DC labor law?

Asked on January 7, 2011 under Employment Labor Law, District of Columbia

Answers:

MD, Member, California Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

No. A tip pooling arrangement can be legal but it must exclude certain types of employees (usually managers who are purely salaried).  You need to review DC's tip pooling laws under the FLSA and see if there is a specific exclusion for such employees. Usually front of house and back of house will share (like clean up staff).  In terms of the manager using the sale of wine as a backwards method of getting in on the pool is absolutely ridiculous, runs afoul of many labor laws and can and will cause a conflict of interest in terms of scheduling shifts amongst the serving staff, bartending staff and the like so he can possibly get a higher cut. Do your research first and then approach the labor board or if you have the gumption, the corporate office of this restaurant.


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