Quote:
Originally Posted by PeteMcCracken  We're "in the back woods" here, the information I was given: qualified employees may set up a "tip pool" as long as management has nothing to do with the structure, setup, or payout AND does not receive any "benefit" from the pooled tips.
Additionally, management cannot require nor prevent participation.
Apparently, there is more to be learned.... |
Management is prohibited from sharing in the tip pool. To that extent, you and your attorney (?) are right.
Management is also prohibited from using tips as an offset against an employee's minimum or "market" wages. In other words, the practice of "tip crediting," is barred. See,
Henning v. Industrial Welfare Com. (1988) 46 Cal.3d 1262, 1270-1275; and
Industrial Welfare Com. v. Superior Court (1980) 27 Cal.3d 690, 729, 730.
There is no legal obstacle to management establishing the pool or its structure -- as long as the structure fits within the strictures of Cal. Lab. C. sec. 351. See,
Leighton v. Old Heidelberg, Ltd. (1990) 219 Cal.App.3d 1062. Moreover, in the event that an establishment does have a conforming tip pool, an employee may neither refuse to participate, nor opt out. Id; and see also the previously mentioned
Etheridge v. Reins (2009) Slip Opinion,
http://www.courtinfo.ca.gov/opinions...ts/B205005.PDF.
I hope you misunderstood your attorney. If, in fact, you're accurately reporting legal advice from a practicing attorney, it's a little scary. (S)he should be more familiar with the law upon which (s)he advises you. "Back woods" is no excuse for a lawyer. Same law, same Lexis, same internet, same standard of care.
Your attorney should read every case I've cited. I've left them here more for her or his benefit than yours. (S)he could do worse than to start with Etheridge -- not so much for its holding, but because of the discussion beginning on p. 8 (slip opinion).
Good luck,
BDL
PS. The "style" of this post should be sufficient for your attorney to at least begin her or his independent research. At minimum, (s)he owes you an apology.