Is my employer allowed to count my tips without my presence or acknowledgement?

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Is my employer allowed to count my tips without my presence or acknowledgement?

I am a bartender in California. Sometimes my boss will collect my tips during my shift. He will privately count them and walk into another room with them. There is zero communication on the total of tips received. He closes our shifts out the same way. I am not given an opportunity to count or verify my tips. Also, on credit card receipts, if the tip is not formally written, but the written total is increased, the tip is denied by my employer. Many people will increase the total with out indicating a tip. Is my employer allowed to deny me theses tips? Furthermore, sometimes credit cards slips are not signed. Is it legal for my employer to deny me the tips indicated on these receipts?

Asked on June 1, 2017 under Employment Labor Law, California

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

1) There is no law requiring that tips be counted in an employee's presence. 
2) If the total is increased but an amount is not indicated to be a tip, he can may be able deny it to you, since it is only possible, not certain, that the extra was a tip to the waitstaff: it is not clearly indicated. Yes, it is likely that it was a tip, but if you were to take legal action (see below) for this money, as the person suing, you'd have to prove that the extra was a case by a "preponderance of the evidence" and it's not impossible that you would fail to sufficiently convince the court when there is nothing on the receipt showing that it was a tip.
3) If he puts through an unsigned charge and there is a tip on it, he has to give you your tip, if a tip is indicated. If he does not or cannot put through the unsigned charge so he does not collect, then clearly, he does not need to give you a tip which he himself never received.
If you believe he is cheating you on your tips, you could try contacting the state department of labor: they may be willing and able to help you. Otherwise, your recourse would be to sue the employer for the money, and lawsuits are never guaranteed.


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