tag:blogger.com,1999:blog-5195531732750182551.post2677440496843561637..comments2024-01-10T03:22:18.004-08:00Comments on Bryan Schwartz Law: Who Is Getting Your Tip Money? It Is Time to Put Limits on Tip-Pooling.Bryan Schwartz Lawhttp://www.blogger.com/profile/10509090710437656270noreply@blogger.comBlogger6125tag:blogger.com,1999:blog-5195531732750182551.post-54489224953441336342009-07-01T11:18:12.573-07:002009-07-01T11:18:12.573-07:00One good reason for why the Leighton ruling should...One good reason for why the Leighton ruling should be overturned. <br /><br />Leighton observed that “the legislative intent reflected in the history of the statute, was to ensure that employees, not employers, receive the full benefit of gratuities that patrons intend for the sole benefit of those employees who serve them.” <br /> <br />While the courts recongized the fact that the legislative intend of Califronia labor code 351 was to ensure that the employees, rather than the employer, receive the full benefit of the gratuities that patrons intend for the sole benefit of those employees who serve them, following are articles explaining exactly how the pooling of tips can create a benefit for employers. What these articles all clarify is that when an employer is allowed to require tip pooling he can reduce his payroll costs and subsuquently save himself money. While these articles address the most beneficial scenario. where both tip pools and tip credits are available to the employer, the articles clearly explain how, even when no tip credit is taken, tip pools can be utilized to financially benefit the employer. <br /> <br />Employer mandated tip pooling allows employers to reduce their labor costs via the tips customers present their employees. The money that is being used to reduce such labor costs and which ultimately is creating a financial benefit for such businesses is coming from their employee's tips. <br /> <br />I do not beieve employers should be allowed to benefit themselves to their worker's tips. Employer mandated tip pooling is a tried and proven means for employer to benefit themselves to their worker's tips. I do not understand why the courts of California are allowing employers to mandate tip pooling when there is documented proof that an allowance of such acts clearly provide employers with a means to benefit themselves to the tips customers present their workers. <br /> <br /> <br />Restaurant owners reduce costs through credits and tip pools<br /> <br /> http://www.bizjournals.com/ct/c/590571<br /> <br />Tipping the scales in restaurateurs' favor: tip credit, pooling can reduce labor costs<br />http://findarticles.com/p/articles/mi_m3190/is_29_38/ai_n6124187/<br /> <br /> <br />Use Caution in Managing Payroll Costs through Tip Credits and Tip Pooling<br />http://www.sandsanderson.com/our_work/article_tip_pooling.htmlGeorgehttps://www.blogger.com/profile/10078185520158891780noreply@blogger.comtag:blogger.com,1999:blog-5195531732750182551.post-41704787894365877562009-06-28T10:48:23.979-07:002009-06-28T10:48:23.979-07:00What I don't understand is why the courts seem...What I don't understand is why the courts seem to focus on tips left by patrons rather than focusing on tips given by patrons. California labor laws which concern tips explain that the intent of the law is "to prevent fraud on the public in conection with the practice of tipping. <br /><br />Federal regulations state that "A tip is a sum presented by a customer as a gift or gratuity in recognition of some service performed for him" Money, simply left at a restaurant, doesn't seem to fit the requirements of a tip. Ovbiously a patron who simply leaves some money lying around is not recognizing some service proformed for him. The money is undesignated. Is it anyones fault, other than the customer, if the workers do not get the money carelessly left at a restaurant? <br /><br />The courts seem to be more concerned about protecting customers who careless leave amounts of money lying around rather than protecting those who want to tip certain individuals. <br /><br />My point is, the courts should not focus on money carelessly left undesignated, they should focus on tips which are paid or given to an employee and which are designated.<br /><br />I do not believe that California labor laws where enacted to protect the public who careless leaves their money lying around, but rather the laws where enacted to protect those customer who want to recognize the service of an employee. <br /><br />I think the courts should refrain from attempting to guess at who customers might intend to tip and start looking at whom customers actually present their tip to. In the case of the waitress and the busboy. Who is handling the check? If it is the waiter, then the customer is presenting the waiter a tip when he includes a tip on the bill. My point is, many customers would rather choose, for themselves, who they are tipping than have the courts choose for them. <br /><br />I believe THAT the courts responsibility to the public is to insure that they have every opportunity to choose, for themselves, who they are tipping. A good place to start would be to prohibit the use of tip jars which either intentionally or mistakenly have no names printed on them and which leave the customer no opportunity or ability to choose who they wish to tip. Another way to insure that the public has the opportunity to designate who their tip is intended for would be to prohibit employer mandated tip pooling. When employers are allowed to share the customer's tip among a group of workers, the customer is deprived his right and ability to determine who should be entitled to his tip. <br /><br />I just don't understand why the courts are so insistent on protecting customers who obviously have little regard for who should receive their tip. Why aren't the courts concentrating their efforts on protecting the customers who want their tip protected as the property of the person to whom they have choosen to tip?Georgehttps://www.blogger.com/profile/10078185520158891780noreply@blogger.comtag:blogger.com,1999:blog-5195531732750182551.post-53803217117314559462009-06-27T10:45:17.574-07:002009-06-27T10:45:17.574-07:00When employers mandate tip pooling, they are the o...When employers mandate tip pooling, they are the ones who determine who will be included in the sharing of such money. They are the ones who determine how much each participant will receive from the pool. How can it be suggested that an employer who mandates tip pooling is not collecting or taking the gratuities when clearly he is the one who will determine how such funds are used.<br /><br />The courts seem to think that they can cover up the fact that an employer who mandates tip pooling is unlawfully controlling property that does not belong to him. By suggesting that the courts are limiting how employers use the customer's tip, employers are exhonerated from any claims that they are illegally appropriating the customer's tip without his consent. <br /><br />The truth of the matter is, the courts are not governing how employers will use the customer's tip when employers mandate tip pooling. While the courts have ambigously set rules for who may be included in an employer mandated tip pool, they have neglected to instruct employers on the exact percentage each empployee included in the pool should receive. Clearly the courts are allowing employer to decide what percentage each employee included in an employer mandated tip pool should receive. What such insight clarifies is that the courts have allowed employers to collect and take the gratuities paid, given or left by patrons.Georgehttps://www.blogger.com/profile/10078185520158891780noreply@blogger.comtag:blogger.com,1999:blog-5195531732750182551.post-89989156932958129222009-06-27T10:44:30.651-07:002009-06-27T10:44:30.651-07:00How do you put limits on how stolen property is di...How do you put limits on how stolen property is distributed? When you suggest that limits should be put on tip pooling, what you are neglecting to understand is that, as the sole property of the employee who was paid, given or left the tip, the employee cannot be restricted as to whom he may share his tips with. What you seem to be suggesting is that employers, rather than employees, should be limitted as to whom they share their worker's tips with. Does that really make sense to you? <br /><br />The thing is, when tip pooling is correctly understood as the right of an employee, who has personally been presented a tip, to share his tip with whom-ever he chooses, there is no need to limit who may be included in a tip pool. California labor code is silent on who may be included in a tip pool except for it's statement that no employer or agent of the employer shall receive any part of the gratuities. <br /><br />I believe that California Labor code substantiates the fact that an employee who personally receives tips from patrons is free to pool or share his tips with anyone he chooses, other than an employer or an agent of the employer.<br /><br />The problem California has created is, now, instead of tip pooling being correctly viewed as the right an employee, who has been given a tip, to share his tip with whom-ever he chooses, tip pooling is being viewed as the right of the court's to share the employee's tips with whom-ever they choose. While an employee who is given a tip is clearly authorized to use his tip for what-ever purposes he chooses, the courts have not been authorized to use the customer's tip for their purposes. <br /><br />My point is, when you attempt to limit who may be included in a tip pool, you are infringing on the rights of those whom state laws proclaim tips are the sole property of. By limiting employers and their agents from receiving any part of the gratuities, you are not really infringing on the rights of the employees, but rather, insuring that the public's tip is protected from the over-reaching hands of employers.<br /><br />There should be no limits on who may be included in a tip pool other than those spelled out in California labor code. Just as there should be no limits on who may be included in a tip pool, there should be no allowances on who may be included in a tip pool. We are talking about private property here. You cannot allow others to entitle themselves to someone else's property. Likewise, you cannot limit an employee from entitling other to a share of his property. <br /><br />The whole misunderstanding stems from the fact that the courts have refused to view employer mandated tip pooling as the taking or collecting of tips California labor code has prohibitted. It should not be that hard to understand that when an employer mandates tip pooling he is taking or collecting gratuities.Georgehttps://www.blogger.com/profile/10078185520158891780noreply@blogger.comtag:blogger.com,1999:blog-5195531732750182551.post-59370020366408712412009-06-26T10:48:55.914-07:002009-06-26T10:48:55.914-07:00Couldn't the statement that every gratuity is ...Couldn't the statement that every gratuity is hereby declared to the sole property of the employee or employees to whom it is paid, given or left for be explaining that whether a tip is given to one employee or several is to be solely determined by the patron. <br /><br />The law goes on to explain that the law was enacted to protect the pubic from fraud in connection with the practice of tipping. <br /><br />The courts seem to suggest that the law is explaining that tips must be considered the property of a group of employees rather than the property of an individual. In fact, the Leighton ruling suggests that patrons don't care if the courts strip them of their right to determine who should be the recipient of their tip. <br /><br />"We dare say that the average diner has little or no idea and does not really care who benefits from the gratuity he leaves, as long as the employer does not pocket it, because he rewards for good service no matter which one of the employees directly servicing the table renders it. This, and the near impossibility of being able to determine the intent of departed diners in leaving a tip, in our view, account for the Legislature's use of the term 'employees' in declaring that 'every such gratuity is hereby declared to be the sole property of the employee or employees to whom it was paid, given, or left for.' (Lab.Code, § 351, italics added.) It is clear that the Legislature intended by this section to cover just such a situation." Leighton, 219 Cal.App.3d at 1069.<br /><br />The thing is, only when employers are allowed to mandate tip pooling does the intent of the customer seem to be an issue. Could it be that the reasoning behind the law stating that No employer shall collect any part of the gratuities paid, given or left for an employee is that such collecting of tips would create a situation where the court's interpretation of the customer's intent, rather than the actions of the customer, will prevail in determining who the tip belonged to" In other words, haven't the courts now authorized themselves to determine who the patron is given, paying or leaving a tip for? As such, an employee who is given a tip cannot claim that his tip is his sole property or for that matter that his employer is violating state law when his employer takes his tips away from him. <br /><br />The courts suggestion that a tip should be the property of a group of employees to whom the customer intended to tip seems to ignore the rights and actions of the customer. Could it be that such rulings are simply an attempt to prevent an employee from claiming such property as his own? Could it be that such a ruling is simply an attempt to prevent customers from actually entitling an employee or group of employee to their tip to the point where state laws would cease protect them and the customer? <br /><br />In fact, the Leighton ruling suggested that it is ridiculous for a waiter to assume that a tip given him is his personal property. Wouldn't such logic also suggest that it is ridiculous for a group of workers to assume that a tip left for them was their personal property? How can anyone assume the intent of each and every customer?<br /><br />Employer mandated tip pooling is the unauthorized appropriation of private property, the customer's tip. The only thing that has made such acts legal is the court's unsubstantiated insistance that the courts are authorized to appropriate the customer's private property for them. <br /><br />The truth of the matter is, it is the customer's right to determine who is entitled to his tip. When customers are deprived such rights, those worker who are presented tips cannot protect the tips they have been given and employers are free to benefit themselves to the tips. When the courts allow employers to mandate or require tip pooling they are authorizing employers to strip those workers who personally receive tips of their right and ability to protect the tips they have been given.Georgehttps://www.blogger.com/profile/10078185520158891780noreply@blogger.comtag:blogger.com,1999:blog-5195531732750182551.post-43181594032318660682009-05-01T10:13:00.000-07:002009-05-01T10:13:00.000-07:00Note that, on the day I wrote the foregoing letter...Note that, on the day I wrote the foregoing letter, the Supreme Court did decide to grant review on the Lu case, but only as to whether sec. 351 of the California Labor Code creates a private right of action - not the important issue of how far an employer may stretch a tip pool.Bryan Schwartz Lawhttps://www.blogger.com/profile/10509090710437656270noreply@blogger.com