Employees in many industries rely on tips to make a living. From restaurants in Orange County, California to nightclubs in Los Angeles County, California, tips and gratuities are commonplace and designed to supplement regular wages for employees. It is an important public policy of California to prevent fraud on the public based on deceptive or misleading tipping practices. Employment attorney Yashdeep “Jesse” Singh represents employees in Superior Court of California, including Orange County Superior Court of California and Los Angeles Superior Court, who were not paid tips and gratuities that they were owed. Contact us today for a free consultation.Aggressive Advocacy for Employees Whose Tips Have Been Stolen in Violation of the California Labor Code
Generally speaking, a tip or gratuity that a consumer leaves for an employee is the sole property of the employee. (California Labor Code § 351.) The employee must be paid the entire tip. An optional “service charge” that is not fixed in the price of the customer’s bill is considered a gratuity or tip. An employer cannot share in the tip or unlawfully deduct or credit the tip against the employee’s wages. Even if a consumer pays a tip by credit card and the employer incurs a processing fee, the employee’s tip cannot be deducted by the amount of the fee.
A mandatory “tip pooling” policy is legal. Under a tip pooling policy, various employees can “pool,” or share, in the tips left or given by consumers. For example, a family patronizing a small restaurant in Fullerton, California may leave a $50 tip at the end of their meal. Rather than the entire tip going to the server at the table, 15% of the total tip may be allocated to the busboy and dishwasher based on the number of hours they worked during the shift. The employer that creates the policy should reduce the policy to writing and specify the criteria for how the tips will be apportioned among employees. Of course, a supervisor, manager, or owner of the restaurant cannot include him or herself in the tip pool.
The employer is also required to keep accurate records of the tips or gratuities to employees, which may be subject to examination by the Labor Commissioner and the employees. (California Labor Code § 353.)Brea, California Law Group That Helps Employees Recover Unpaid Tips
Unlike a claim for unpaid wages or unpaid premiums for meal and rest break violations, there is no private right of action for unpaid tips or gratuities. That means a waiter in Santa Ana, California or an Orange County server cannot file a lawsuit against the employer for misappropriated or stolen tips or gratuities in violation of California Labor Code section 351.
An experienced labor lawyer can help an employee recover tips and gratuities in the Superior Court of California. The employee may bring a claim for conversion that alleges the employer interfered with or withheld money belonging to the employee. As part of the lawsuit, the employee would need to identify the specific sum of tips and gratuities that were withheld by the employer. The employee may also bring a claim under the California Unfair Competition Law (California Business & Professions Code §§ 17200, et seq.). The Unfair Competition Law, or UCL, prohibits any business from engaging in conduct that is “unfair,” “unlawful,” or “fraudulent.” Stealing tips or gratuities from an employee constitutes a violation of the UCL. Another advantage of bringing a claim under the UCL: an employee can seek recovery of unpaid wages dating back four years.
Employment law firm Yash Law Group has experience fighting to recover unpaid wages and tips for employees in California and aggressively litigating cases where serious employee rights are at stake. Contact us today, 714-494-6244.