Atlanta Employment Attorneys Blog
One of the thorniest areas of Fair Labor Standards Act law concerns tipped employees. Disputes involving tipped workers are among the most frequent to arise. One area where difficulties may emerge is when an employer establishes a mandatory tip pool. While some workers, like servers, might obviously be included in a tip pool, other employees’ jobs might make their status less clear. If you are an employee or an employer with a tip pooling question, be sure you get the knowledgeable information you need by speaking to a knowledgeable Atlanta wage and hour lawyer.
A recent Wage and Hour Division (WHD) opinion letter is a reminder that, when it comes to mandatory tip pools, the key is not just what task an employee does, but the context in which they perform it.
The employer was a seafood restaurant that offered freshly shucked oysters from an oyster bar. At this restaurant, the employer stationed the oyster shuckers behind the eatery’s bar alongside its bartenders, where they engaged “with customers by sharing and detailing oyster offerings, making suggestions regarding the oyster offerings, and fielding other questions about the different options, while preparing the oysters for and in front of the customers.”
These oyster shuckers received tips for the service they provided.
The employer’s inquiry questioned whether the FLSA allowed it to include its oyster shuckers in its mandatory tip pool with its servers and other employees for whom the restaurant took a tip credit.
The WHD responded in the affirmative. In explaining its reasoning, the WHD reminded its audience that employers may only mandate contribution to a tip pool if that pool “is limited to employees who customarily and regularly receive tips.”
As examples of each category, the WHD noted that “employees who customarily and regularly receive tips” include “waiters, bellhops, waitresses, countermen, busboys, and service bartenders,” but not “janitors, dishwashers, chefs, and laundry room attendants.”
Two key factors the law considers to divide the two groups are whether the employee has “sufficient interaction with customers” and whether they are engaged in a customer service function. If yes, then they were tipped workers; if not, they were not.
The WHD explained that these oyster shuckers, by the nature of their jobs, were akin to other counter workers. The division also analogized the shuckers’ jobs to itamae-sushi chefs, teppanyaki chefs, hibachi waiter-chefs, and sommeliers, each of whom the WHD has historically deemed as workers who may participate in tip pools. That was because all of these roles involved workers who provided a service to the customer while directly interacting with them in a substantial way.
By contrast, the division explained, a dishwasher who “occasionally shucks oysters and peels shrimp” in the restaurant’s kitchen — far from the patron’s view — would not qualify.
FLSA issues, including questions about tip pooling, can be complicated, nuanced matters. Whether you are a worker ensuring you get a fair wage or an employer seeking to ensure you are entirely in compliance with the law, the Atlanta wage and hour attorneys at Parks, Chesin & Walbert can help you ensure that you understand your rights and obligations to the fullest. Contact us through this website or at 404-873-8048 to schedule a consultation today and find out how we can work for you.