Both the Fair Labor Standards Act (FLSA) and California labor law include provisions regarding workers who receive tips as a significant portion of their wages, such as waiters, waitresses, and bartenders.
Both federal and California tip law state that tips are the sole property of the tipped employee. In other words, employers and supervisors are prohibited from taking any portion of their employees’ tips. An exception to this provision is the practice of “tip pooling,” in which tipped employees combine and share their tips. Both California and federal law permit tip pooling, but restrict the types of employees that can participate in the pool. California law allows only employees that provide “direct table service,” such as waiters/waitresses, busboys, and hosts/hostesses to participate in the tip-pooling arrangement, with the exclusion of owners, supervisors, and managers. Federal law prohibits employees who have not customarily participated in tip-pooling arrangements, such as “dishwashers, cooks, chefs, and janitors,” from partaking in tip pools.
Credit card tips
The California Labor Code states that if a tip is left by credit card, the employer must give his employee the full amount indicated on the credit card slip and may not deduct any amount for a credit card processing fee. Federal law allows employers to deduct the percentage paid to the credit card company from the employees tip, but this deduction cannot reduce the employee’s wage below the federal minimum wage. Under Federal and California tip law, employees must receive their payments for credit card tips by the next regular payday following the date the tip was given.
Under California law, employers may not deduct their employees’ tips from their wages, nor can they credit tips towards future wages. This differs from the FLSA tip credit provision, which permits employers to apply tip earnings toward the balance of the minimum wage obligation. Under the FLSA, employers must still pay their employees a minimum of $2.13 an hour and notify them if they are employing a tip credit arrangement. In California, if an employee’s tips combined with the employer’s direct wages of at least $2.13 an hour do not equal the minimum hourly wage of $7.25, the employer must make up the difference.
What can I do if I believe my employer violates federal or California tip law?
If you believe that you have not been fully compensated for tips that you have received, or that your employee rights have otherwise been violated, please fill out the form below or call us at (866) 981-4800 for a free and confidential consultation with our employment lawyers.