My workplace is a combination restaurant and wine/cheese shop. The people that work at the cheese counter also make cheese boards for the tables in the restaurants. Patrons often come up to the counter to get recommendations and samples and also request that the mongers come to their table to assist them in placing the order. It is also part of the mongers job to take the boards out to tables and explain them.
Sometimes they have to clear dishes, or flag down a server to add requests. The monger are all front of house, customers come to them for retail help and interface with them, they are nto behind a kitchen wall, but very accessible. They are sometimes the only service the table needs besides drinks. There are times when tables are just getting cheese and chocolate boards delivered by mongers and leave a tip that is then going to the server.
The restaurant has a mandatory tip pool where tips are split between servers, bussers, runners, and hostesses; however the counter service mongers are only allowed to have tips given to them by retail customers. When management is approached about including them in the tip pool because they help table service they are denied, being told that it is illegal to include food preparers in a tip pool.
Is it okay to deny some people out of their tableside tips because they also prepare food in the front of house? There are times when patrons think they are giving tips to the person presenting the cheese board, but they are not. Is it legal to deny some people that are in the chain of service?
Hi untipped,
Thank you for your question. It’s true that employers in California used to be prohibited from requiring people to pool their tips with employees who do not “customarily and regularly receive tips,” such as back-of-the-house food preparers, dishwashers, etc. But there are two problems with your employer’s interpretation of this regulation:
- The regulation did not prohibit employees that receive more than $30 a month in tips from participating in a mandatory tip pool, and it sounds like the front-of-the-house mongers in your situation might meet that low threshold.
- The regulation was repealed by the Consolidated Appropriations Act, 2018, which was signed into law by President Trump on March 23, 2018.
So, it’s no longer the case that back-of-the-house employees are prevented from sharing in mandatory tip pools. Rather, California courts have held that any employee that participates in the chain of service can be included in a mandatory tip pool—except owners, managers, and supervisors. (Etheridge v. Reins Internat. California, Inc. (2009) 172 Cal.App.4th 908, 923.)
This means that food preparers are legally allowed to participate in mandatory tip pools. That does not mean, however, that your employer is required to include food preparers in such mandatory tip pools.
It is perfectly acceptable for a mandatory tip pool to exclude certain classes of employees, like mongers, so long as all tips left for the mongers are given to them. But, if the patron believes they are giving their tip to a monger, those tips are the property of the monger and they must be given to the monger. (Labor Code, § 351.)
Your employer cannot both: exclude mongers from the tip pool, and include all the tips left for the mongers in the tip pool. That effectively deprives the mongers of tips that rightfully belong to them. If the employer has such a policy and that policy is mandatory, they are violating the law.
The real difficulty is determining the patron’s intent in these situations. How do you know who they intended to leave the tip for? If you can prove that they intended to leave it for the mongers, then it belongs to the mongers (or a tip pool that includes the mongers).
I hope this information helps. If you would like to learn more about tip pooling law in California, check out our article on that topic: Tip Pooling Law in California: Employee Rights Explained.
Please remember that this information does not constitute legal advice and should not be relied on. Nor does it create an attorney-client relationship.
I wish you the best of luck in your situation!