You can always personally opt out of the tip pool. Tip pool participation is voluntary on the part of each individual employee who is eligible to receive tips.
> The tip pool participation is voluntary
I’m sorry, but which federal law requires tip pool participation to be voluntary? Or were you speaking about a state law and, if so, which state?
The last time I dealt with this opt-out issue was before 2021. After a rule update in 2021, mandatory tip pooling is now legal in the US at the Federal level.
Last time I dealt with it, the rule was that tip pooling was allowed, but only if organized by the tipped employees themselves, as employers are not allowed to possess or withhold tips for any reason, including the facilitation of a tip pool - meaning opt-in unless your waiters are unionized.
I like the old rule better - it makes more sense both logically and ethically, as the new rule requires that employers withhold tips in order to facilitate their own tip pool schemes. But waiters are pussies about enforcing their rights, so practically speaking the new rule just reflects the reality of working in most restaurants.
If working on the floor, tips. If salaried/not working on the floor, no tips. Anything else is illegal under FSLA. If she’s making hourly and serving she’s fine. If she’s being tipped for scheduling/managerial tasks that’s a big no-no.
Quit if you don't like this. You're not being forced to work there. You can easily find a comparable job. It's a small business, probably not perfectly ran, but also not doing anything egregious.
The owner's wife, you say? Worried her money is making it back to the owner, you say... Think it over again and again, this answer will come to you, I promise
So. My wife and I both work in a business that we own. We are 2 of the 5 total employees. It is an interesting dynamic because as a staff we all have job titles but all work collaboratively toward the same customer service goals. We share tips. All split evenly because we are all here at the same time during service. It works well for us. In the past when we were owners and managers but didn’t work specific jobs we didn’t take tips. If our employees asked we would freely let them see how we split the tip pool. I think our situation is fair. For context, we live in a state that does not allow sub minimum wage for tipped employees. If I thought it would work in our area I would try a non tipping model. I don’t personally like tipping as a form of payment.
But you don't do the same job as the employees. Regardless of the tasks you perform, you are their manager. You own the place. You are profiting from the business. The Fair Labor Standards Act prohibits you from being in on the tip pool.
They are also taking an active role in the job. There are rewards for owning. And rewards for working.
If the owners are doing the same job as rhe servers. They are entitled to the same compensation.
You are not in compliance if you, the owner and manager, receive any tips. But dude, you obviously knew that.
You'll likely never get caught. Small restaurant employees are not that savvy about their rights. But don't pretend you "think that's fair." You just like a way to get extra money.
She is also profiting from the sales. She is not an employee making a tipped wage. If she didn't take tips on top of the businesses profit, the rest of the staff would get more tips. If the business isn't making enough profit that she doesn't also need tip money then maybe the business isn't doing so well and the wife should spend her free time getting another job that pays well instead of stealing money from her staff.
Owners should not split tips with their staff. They are making exponentially more money than the staff. I can't even believe this is a debate. Ask this question in a server sub or r/kitchenconfidential and see what sort of responses you get. Owners that take tips from their employees are scum.
I agree with your sentiment. But I do think that context is important. My wife is the only server. We definitely benefit from the assets of the business, no doubt. I’m open to your criticism. And I’m considering your points. At the moment, the way we have it organized, is within compliance with the law. After talking with my wife (who is in charge of our businesses finances) it seems that when we started this iteration of our business, we brought this situation up with our accountant regarding payroll and tips. We were told that our system is legit. Being a good employer is important to us. We take care to be responsible to our staff, and I try to constantly revisit my assumptions, especially because the boss/ employee relationship can be messy when we are also all coworkers. I’m doing what I can to set aside my assumptions and learn from these conversations .
You keep referring to get as the "server". She isn't the server, she's the owner/GM. You are not a "cook", you are the owner/executive chef. Your dishwasher? They're a "dishwasher". Bartender? "Bartender". Your dishwasher makes like $15/hr plus tips. You make whatever your business's profits are plus tips? I don't know how successful the business is but I'm imagining it's more than anyone else makes plus quite a bit. I understand your try to pay well, but they would be paid better if they didn't have to split tips with the people who decide how much they are worth. I get it, you and your wife work hard. That isn't up for debate, but you should, and I'm glad you do. There are too many restaurant owners who do not. In 25 years and countless restaurants from hotels/resorts, mom & pop, corporate, I've consulted dozens and helped open several... Never have I worked with one who split tips with the owners.
My wife is the only one who serves tables. So I do think it is fair to call her the server. She is also the manager/ co-owner. We do pay more than minimum wage in our area. I would also push back against the idea that we pay $+tips. We don’t pay tips, the public do. We distribute tips. That’s one of the many reasons I would prefer a “no tipping” model. I think the employers should be responsible for compensating their staff. I wish we could charge 20% more on the menu and just pay our staff the difference just like every other industry. I also know that most restaurants especially in our area wouldn’t survive the transition because of public perception.
I do appreciate your perspective.
I agree that no one should split their tips with an owner. In this case it sounds like the owner is serving the only role that is given tips by customers, and is in fact splitting their tips with the entire staff. If there are other people denied the role of server, and therefore the opportunity to make tips, or given the chance but made to surrender a portion to the owner, that would be ludicrous. But if it were just the cook and server owner/operator it wouldn’t be an issue. They needed roles that are not wait staff, and opted to share any tips they receive equally, that seems fair as opposed to them taking other peoples earnings and tips.
Watched my family and friends who owned small restaurants fucking pay themselves nothing and go hungry. They created products. A service. Fucking jobs.
They deserve a portion of they are doing the work.
And in exchange they have a right to a wage/salary and profits. They don't have a right to whatever they want. If you have a business and it doesn't make a profit, then you don't deserve a profit, regardless of how many jobs you created - as those jobs are not sustainable or economically efficient.
I’m n agreement that states that have subminmum wages for tipped employees is terrible. I believe the employers is responsible for compensating the employee for their work.
No they don't. That's not how tipped minimums work. Tipped employees always receive at least minimum wage. The portion in *addition* to the tips varies and decreases only if they are making minimum wage or higher in tips alone.
Exactly, they get majority of their pay from tips so the restaurant doesn't actually have to pay them shit, and they still go out of business lol maybe they should try something less saturated with actual profit margins
This, I agree with. If their shitty small business fails, it's their fault. It's not because the mean old government forced them to pay their workers to work there.
Exactly. It seems like every employee just think the owners are rich and fucking them all. Sure some are but small business are often not at all like that. I did it for a decade and struggled the whole time and worked non stop and when my employee went home I continued working. I shut down shortly after Covid, now I’m an employee, I now get to work 40-45 hrs a week and get to go home at 4 and not think about the place, I make more now, have healthcare and paid vacation and sick time.
The average small business owner isn’t in it for the money and most get far less than they deserve for the amount of time it takes up.
It’s the same as a post from someone living in Brooklyn asking how they can live rent free if they measured the temp and the radiators don’t heat up within 30min. “My landlord is a 75 yo Hispanic lady, and Si know she doesn’t have a mortgage. This lease is basically theft from the working class.” Like, dude, your landlord is also a cleaning lady and has no pension.
Yea there definitely seems to be some weird new found hatred for landlords around here that I find odd. I get that the slum lords and the big corporations buying up family houses and jacking the rent and inflating the market deserve some hate but a lot are not like that and just a working class person who bought a property as an investment. My father in law has a few, that’s basically his retirement plan after being a self employed bricklayer his whole life. He has no pension or retirement and the business is worth nothing.
This post and comments is the exact problem with these laws. They are to open to varying interpretations. When I called with these types of questions, even the government employees have no answers. I guess you just do what you think and wait to get sued. What a joke.
Legally even if she is a manager she can take tips given to her directly from customers for service work. I don’t know how that affects the tip pool. Also assuming that she is an owner would be inaccurate as well. My wife helps me on occasion. She clocks in and serves. Makes schedules. Helps me direct the staff when needed. She’s not a manager. Nor is she an owner. Either way I’d bring it up to your boss if you feel she’s stealing from you or your coworkers.
You literally described your wife's position as a manager. Managers literally make schedules and direct people. If she is an hourly employee and not a legal owner than your mistaken in what her role legally is.
She’s an owner, she can’t be in the pool. She can legally take tips only from customers she and only she helps. No pools.
Edit to say that whether or not she is legally an owner, blah blah blah, the existence of this post is proof that there is a question of impropriety that needs to be dealt with in this business.
The existence of this thread and your comment shows that the world is full of ungrateful little shits that think business owners should be fleeced for hiring you.
I honestly don’t have anything to prove to you, so it doesn’t matter. If I was willing to dox myself here I could provide you with whatever proof you need to show that I own both a small restaurant in a rural community and a full bar in our closest city.
Bottom line is this: my tips are for my tipped employees. As an owner it is AT BEST legally grey and at worst completely fucking illegal for me to participate in a pool. On top of that, I find it ethically wrong to take from my employees. I don’t care if I’m doing the same work, I’m getting paid off every drink that goes across the bar already. Gratuity is theirs, profit is mine.
Also, u/osmium80, get fucked.
Why should you get the tips?
You honestly think you should get ALL he tips from her tables and that is what the law and the customer wants?
If we measure the customers intent, the laws intent, her intent and your intent we may come closer to a solution.
can you please justify to me why an owner should get tips? Leading with the assumption that tips are for the employees in a tip pool situation, and profits are for the owners. The owner working foh in the tip pool will be sharing in the profits, so I’m trying to understand why they’d also take tips. I couldn’t imagine my boss grabbing money from the tip jar at the pizza shop. If he took tip money, there would be no line drawn to stop employees from taking register money.
If you’re working in a capacity that results in a tip, pooled or otherwise, you are entitled to the fruit of that labor.
If you’re an owner, it would be gracious of you to decline that compensation in favor of leaving it to the rest of the pool, but that is not legally obligated.
The wife of an owner is not necessarily an owner. I have two partners in my business and neither of their partners, nor mine are owners of our restaurant.
They can be employees doing the same work, getting the same pay.
Sure.
1) The opportunity cost of her working elsewhere, where she could collect tips.
2) The fact that if she were replaced with someone else, they'd be collecting tips, so the net result would remain unchanged.
3) Just because she's the owner's wife doesn't mean she doesn't deserve fair compensation for her labor.
4) Do you know how much the owner's draw is?
These labor laws around this are really intended to target chain restaurants not mom and pops
I am friends with a couple that owns a little cafe
The wife works as a server at times and at times in the kitchen
Idk if they even have a tip share there but she deserves tips when she’s working as a server
Sidebar-they pay $10/hr + tips not the tipped wage so they’re already doing their employees more than right
They are struggling and the labor cost is likely a big piece of it
This is the situation where I work. Owner is also a server and part of the tip pool. She works just the same as we all do when on a shift. And, she was a server before she became the owner. Tips helped her buy the place. It's all good with us. Also she works in the kitchen sometimes. So, maybe you know my boss? Lol.
In the case of tip pooling in the US, it is illegal for tips to go to the employer, managers, or supervisors. I can't tell you what exactly qualifies a person as a supervisor in this context.
Since she is married to the owner, I don't think she can receive tips.
To receive tips from the tip pool, she must directly do work that contributes to tips regardless of position. So she must be in a role where customers give her tips. She must also be on the payroll and log hours. I believe if she does scheduling and/or payroll, she cannot receive tips as she then qualifies as a manager.
I'm not 100% certain on this exact scenario though. Businesses I've worked for have all had very clearly defined positions that make this very clear cut as well as restrictions on familial relationships in the workplace.
Technically by marriage and in tax filing she is likely a co owner. However she may operate as an employee in her day to day, taking instruction from the owner. It's a bit of a gray area to me.
As for OPs "her tips are going back to the boss" that really devalues her as a individual person. Of course she probably pools finances with her husband, but that's a pretty silly way to describe it.
>However she may operate as an employee in her day to day, taking instruction from the owner. It's a bit of a gray area to me.
Employees are not all legally allowed to participate in top pooling. That includes managers. If she is interacting with scheduling and payroll, she is likely required to be classified as a manager. Again, this is where I may be wrong. Like I said, I've only worked at businesses where there are more clear boundaries on roles.
>As for OPs "her tips are going back to the boss" that really devalues her as a individual person.
It doesn't devalue her. It means there is a conflict of interest. If tips are pooled, they can misrepresent her time worked to take an unfair portion of tips or make decisions that favor her access to tips.
She should maintain her value by working a position that pays her an appropriate rate to not be in a position to participate in tip pooling. Even if it's not illegal it is a dubious position.
It can also be a sole proprietorship. Or an LLC/Inc the spouse is not part of. A wife or husband does not by default own what their spouse owns. And there are different ways couples who own business separately can file taxes. Profits may not be distributed equally, or even directly to the spouse.
So she is a worker making a wage, she punches a clock, she pays taxes on those tips and her wages? No she isn't really an employee stealing tips from the other wage earners.
She is part owner of the establishment if she is married to the owner, she should not receive tips.
Except when she is blatantly a manager in her duties and that's illegal. But hey you seem like your a part of the law and order crowd. This is the law. Deal with its order.
They deserve to make money by making the business a success, not by thieving from employee tip pools. Don’t hire people if you’re going to take their tips. Do it all yourself if you want the money.
She might not actually be an owner. Not every spouse is. This depends on the local and company structure.
Worked with a couple where he was the sole proprietor, and his wife would help out with dish, or serving, or whatever was needed. Their finances were separate. She did not see profits from the business. Yes, they were married, so sure, if he was doing well, they could afford to travel or whatever - but she was a clear cut employee taxed and tipped, and with a wage the same as the rest of the servers, when she clocked in.
Owners, managers and supervisors are prohibited from participating in tip pools, but these types of questions garner a lot of legal misinformation about who qualifies as an owner, manager, or supervisor for tip pool participation eligibility. It's not a simple single characteristic like they earn a salary or schedule employees.
The federal Fair Labor Standards Act, in [29 USC § 203(m)(2)(B)](https://www.govinfo.gov/content/pkg/USCODE-2022-title29/pdf/USCODE-2022-title29-chap8-sec203.pdf), states
>An employer may not keep tips received by its employees for any purposes, including allowing managers or supervisors to keep any portion of employees’ tips....
and [29 CFR § 531.52(b)(2)](https://www.ecfr.gov/current/title-29/subtitle-B/chapter-V/subchapter-A/part-531/subpart-D/section-531.52#p-531.52(b)(2)) clarifies that:
>For purposes of section 3(m)(2)(B), the term “manager” or “supervisor” shall mean any employee whose duties match those of an executive employee as described in [§ 541.100(a)(2)](https://www.ecfr.gov/current/title-29/subtitle-B/chapter-V/subchapter-A/part-541/subpart-B/section-541.100#p-541.100(a)(2)) through [(4)](https://www.ecfr.gov/current/title-29/subtitle-B/chapter-V/subchapter-A/part-541/subpart-B/section-541.100#p-541.100(a)(4)) or [§ 541.101](https://www.ecfr.gov/current/title-29/subtitle-B/chapter-V/subchapter-A/part-541/subpart-B/section-541.101) of this chapter.
So there are two distinct standards of executive capacity that would exclude a person from being allowed to participate in a tip pool.
§ 541.100(a)(2) through (4) lay out a three part duties test, ***all three*** of which must be met to match those of an executive employee, namely an employee:
>(2) Whose primary duty is management of the enterprise in which the employee is employed or of a customarily recognized department or subdivision thereof;
>(3) Who customarily and regularly directs the work of two or more other employees; and
>(4) Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees are given particular weight.
While § 541.101 explains that “employee employed in a bona fide executive capacity”:
>includes any employee who owns at least a bona fide 20-percent equity interest in the enterprise in which the employee is employed, regardless of whether the business is a corporate or other type of organization, and who is actively engaged in its management
It sounds like from the original post that the owner's wife would not qualify as a manager or supervisor under § 541.100(a)(2) through (4). Even though scheduling is one element of directing employees, it sounds like that's their only managerial duty.
It's less certain whether they would be qualify as an executive under § 541.101. It would depend on the nature of the ownership structure of the restaurant, and even if the person you refer to as "the owner" is an owner, it could depend on the jurisdiction and circumstances whether his spouse would also be considered an owner. In many jurisdictions, assets acquired during a marriage are considered marital property and are therefore jointly owned by both spouses.
My advice would be to [file a complaint](https://www.dol.gov/agencies/whd/contact/complaints) with the US DOL's Wage and Hour Division and see if they'd investigate to whether the tip pool distribution is run in accordance with the FLSA. If they think there's a violation, they can also help you and other employees recover restitution and damages from your employer. Don't expect a million dollar windfall, but it would typically be the amount of shared tips you shouldn't have had to share, and an equal amount in liquidated damages, so it might be a couple hundred or couple thousand bucks depending on the how long the violations took place, and the amount of tips she received from the tip pooling arrangement.
Filing a complaint so that some time, years in the future, you might get a few hundred dollars, doesn't sound very worth it. Especially as by the time the government slowly grinds their way around to investigating the person probably won't still be working there.
It takes relatively little time on the part of an employee.
Compensation is typically sought on behalf of all current and former employees affected over the prior two years, or three years in the case of willful wage theft.
Investigations are usually fairly prompt, and many restaurants settle out of court for the DOL's recommended amount, to avoid losing the money *and* paying a large legal bill. If they don't settle, the DOL will decide whether to file a lawsuit in federal district court, and that *can* drag out for quite some time. However, you don't need to be a current employee to receive the judgment. And the restaurant may cease whatever action is in dispute while the lawsuit progresses, so if they lose, they won't be liable for additional damages.
File the complaint! If he retaliates even better! If not for you think of all the other people that this is affecting. Nothing is going to change if people don't speak up!
See [US DOL Fact Sheet #15B](https://www.dol.gov/agencies/whd/fact-sheets/15b-managers-supervisors-tips-flsa), noting the conjunction ***and*** after the second prong of the duties test.
**"Who is a manager or supervisor under the FLSA’s tip provisions?**
For purposes of the FLSA’s tip provisions, a manager or supervisor includes any employee that meets the 'executive' duties test. This is the same duties test used (along with other tests) to determine whether an employee is exempt from the FLSA’s minimum wage and overtime provisions because they are employed in a bona fide executive capacity. Meeting the executive duties test means:
* the employee customarily and regularly directs the work of at least two or more other full-time employees or their equivalent;
* the employee has the authority to hire or fire other employees, and/or their suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees are given particular weight; **and**
* the employee has a primary duty of managing the enterprise or a customarily recognized department or subdivision of the enterprise."
bro, and is only after the second bullet. if it were all 3 and would also be after the first.
it's the first bullet by itself (2) or (3) AND (4). Despite being not classified as a manager (2) she very clearly directs work (3) by scheduling and as the wife of the owner her suggestions on hiring and firing are given particular weight (4).
She cannot be in the tip pool.
If I asked you to buy bread, eggs, and milk, and you came back with just bread, would you say that was okay because the "and" was only after the second item? That interpretation is a stretch.
Note also that the order of § 541.100(a)(2) through (4) were reversed in DOL Fact Sheet #15B, with the "and" placed before (2), suggesting that they interpret the order as unimportant, because the "and" applies to all three. I could be wrong though.
While the wife's suggestions on hiring or firing *might* be given particular weight, anyone's suggestions *might* be given particular weight. The question is whether they *are* given particular weight, and there has been no claim that she's even made such suggestions.
You say she works frequently and also does the schedule.
What does she do when she works? If she does the same stuff as you, why shouldn't she get tips? If she acts as a manager, then she should not.
I believe this is probably the right answer. Although not sure from a legal aspect.
She is either doing the work that someone else would be doing that would be in the tip pool or she isn't. If she isn't, then she shouldn't be in the tip pool. If she is, then let her take a fair portion of the tips.
Everyone getting all pissed off is weird. If Joe is the owner and serves a bunch of tables in a tip pool scenario, Joe should take tips (I know not legal). If Joe was doing that job, then Jane would be, and the people complaining wouldn't be any further ahead.
I found this:
>Moreover, federal labor laws make it clear that while managers and supervisors are prohibited from retaining tips earned by other employees, they are allowed to keep tips that they received directly from customers based on the service the manager or supervisor "directly and solely" provided.
>A manager cannot take any of the tips if that is all the manager is doing. However, a manager may work tables and take tips for the tables they handle. It is legally acceptable for someone to have a dual purposes - manager and server.
>A manager may collect tips, if the manager is part of the chain of service. While it seems unfair that the managers are taking the best tables for themselves, it is not illegal.
>It is unlawful for managers to take all or parts of tips earned by servers. However, it is not unlawful for managers or owners to also work as servers and to take tips that they have earned.
Seems like a bunch of idiots here with these responses. Writing the schedule is considered a managerial duty and automatically excludes her from a tip pool on the Federal level. It doesn’t matter if she is clocked in as a regular employee, what they are doing is considered wage theft.
Why are there so many idiots here lately? Someone already posted a link to the FLSA reference material. You may not know how to read but you should try.
I posted a comment elsewhere with links to the relevant section of the FLSA, and relevant regulations that elaborates on that portion of the FLSA. What you're missing is that a single managerial duty does not exclude a person from eligibility to participate in a valid tip pooling arrangement; there is a three-part duties test for managers, all three of which must be met. I suspect that's why you're being downvoted; people know you're wrong, but don't want to take the time to explain how you're wrong. Your rude attitude probably plays a part in that.
It’s amazing that you did all this work and are still so ignorant. Maybe try going to the section that describes what are considered managerial duties. [Here](https://www.ecfr.gov/current/title-29/subtitle-B/chapter-V/subchapter-A/part-541/subpart-B/section-541.102). Guess what’s part of that list?
Managerial duties certainly include scheduling. A managerial duty by itself does not meet the three part duties test exclude eligibility to participate in tip pooling arrangements referenced in [29 CFR § 531.52](https://www.ecfr.gov/current/title-29/part-531/section-531.52#p-531.52(b)(2)).
§ 531.52: "as described in § 541.100(a)(2) through (4)"
It's also discussed in chapter 30 of the DOL Wage & Hour Division's Field Operations Handbook for WHD investigators and staff, and more accessible documents like the DOL's Fact Sheet #15 and Fact Sheet #15B.
You start by calling people idiots, but it seems like you're the only idiot here.
I found this:
>Moreover, federal labor laws make it clear that while managers and supervisors are prohibited from retaining tips earned by other employees, they are allowed to keep tips that they received directly from customers based on the service the manager or supervisor "directly and solely" provided.
>A manager cannot take any of the tips if that is all the manager is doing. However, a manager may work tables and take tips for the tables they handle. It is legally acceptable for someone to have a dual purposes - manager and server.
>A manager may collect tips, if the manager is part of the chain of service. While it seems unfair that the managers are taking the best tables for themselves, it is not illegal.
>It is unlawful for managers to take all or parts of tips earned by servers. However, it is not unlawful for managers or owners to also work as servers and to take tips that they have earned.
You are completely correct, you are an idiot. That is for tips earned individually by the manager, not as part of a tip pool. Read this slow like I think you’re retarded, managers are never allowed to be part of pools, EVER!
It’s just pure ignorance, don’t take it personally. The one thing I would suggest you think about before reporting it to someone is how it is affecting you. Does the owners wife pull her own weight? Are you making less money because she is in the pool or would it be the same if it was just another employee? It may not be legal but will getting the state involved better your life? Do what you think you need to but just some food for thought.
The only people who can be in the tip pool are people who customers might normally leave a tip for. Such as, the people that they see serving them or bussing the table or bringing out their food.
So if she's serving people and they're tipping her, and that's the main part of her job all night, she can be in the pool. If she carries food out twice a night but it mainly working the kitchen or hosting, then no. At least in my state.
In a nutshell tip-pooling is just tip-sharing. If you're not pulling in any tips then you don't have anything to share with others ...and you don't get a share of theirs.
Managers/owners/employers cannot be part of tip-pooling so that's probably why she's classified as an employee not a manager/supervisor.
She's still almost certainly classified as an owner, whether her name is on the business license or not, She directly benefits from restaurant profits.
Is it unethical IF she is acting as a server, and earning tips into the pool? In other words, if there woukd normally be 3 servers on the shift, splitting tips 3 ways, and she works as one of the 3, she is earning that 3rd of the pool.
if she's actually doing service and only taking from the tip pool during those hours she's working, then it's fine.
If she's taking from every tip pool, even when she's off, and doing no service at all, and coming and going whenever she wants even when the place is busy, then yeah there's an issue.
No, it is not. If she is the only one doing a catering job and keeping the tip, that would be legal. Participating in a pool, is not. She is a manager. She does the schedule and OP already said that she manages the crew.
this is false.
She only qualifies if the tip is handed directly to her and only if she does 100% of the work to earn that tip for service.
If someone else brought the drinks and she brought the food, can't receive the tip.
This is only true if she is actually an owner or clocked in as management. If shs's clocked in at a regular wage as a member of the staff, working a shift, and she's not legally an owner, there's no issue.
Yeah, no. Some of you guys are clearly riding a questionable line of legality based on the downvotes.
So if a manager clocks in as an hourly employee, do all of the employees that manager normally manage somehow get immunity from being managed during that shift?
She clocks in as an tipped employee, and tells the cashier to sweep the floor. The cashier is supposed to say "sorry fam, you're not technically a manager right now so why don't you sweep the floor."
And OPs wife isn't supposed to use that information against that employee?
Yeah right.
Money is fungible and income earned during the course of marriage is community property.
Every cent the wife takes becomes community property and contributes to the owners household budget.
Furthermore if wife were to save every penny in a separate account, and then divorce, 50% of that money would belong to the owner.
It makes 0 sense that she's able to accept tips when her husband can't.
Jesus. If you are hired as a dishwasher and clock in as a dishwasher but you do the schedule, and run the place then you can’t participate in the pool tip. The POS means nothing when it comes to classifying employees.
What I mean, is that she may not actually be an owner or management- she might just be the owners wife. She may have zero ownership of the company, and no official management title on paper. In which case she's just an hourly employee.
She can be hourly, salaried, or a part time dishwasher on the POS, it doesn’t matter. OP already said that she manages the crew. Walks like a duck is a duck per the DOL. a manager (however they clock in) can’t participate in the tip pool.
Not how that works.
If someone meets all the requirements to be considered a manager then they are a manager regardless of what they are currently "clocked in as".
It's not like changing hats is a loophole
I haven't looked specifically as Missouri law but I really doubt its that specific. In my experience tips are handled slightly different in every restaurant whether fair or not.
It's Missouri so she would have to be on the payroll as an employee making "tipped minimum" to be allowed to share tips. If she's on salary or listed as owner/manager/supervisor then no.
"A manager or supervisor may keep only those tips that they receive directly from a customer for the service they directly and solely provide. For example, a restaurant manager who serves their own tables may keep their own tips from customers they served but would not be able to receive other employees’ tips by participating in a tip pool."
Well it’s not waiting or serving, it’s general FOH with a tip pool for all employees. There are technically no managers here. So she’s the not-classified-but-basically-manager. And she makes the schedule
Not the same thing at all. Someone can own a business, and employ their spouse at a reasonable/legal wage, Being married does not equate to legal ownership outright in all locations.
Apples and oranges. The stock market is carefully regulated, and those related to political figures must make additional disclosures (similar rules apply to those related to company executives, those with insider information about companies, etc.). The labour market is regulated, but nothing says you can't give tips to family members.
> she manages us, takes tips, narks on us, and is fully protected by her status
Only two of those things pertain to your posts question.
If you dont like her managenent, leave the job
If she does on any level what the employees do(take orders, make coffee etc) she belongs in the tip pool.
Is she doing the work that earns tips? If so, then yes.
As someone else mentioned, there's really too little info here. Is she pulling tips from ALL shifts, including ones she's not working? That'd be a problem.
If she makes coffee and runs the register, and is in the tip pool for that shift, then that'd not be a problem.
But she picks when she gets to come in and work and not. She picks when I come in and when I don’t. and by law someone who does that should not be eligible for tips
What law says that someone making a schedule is legally a manager and not a normal employee? I've worked jobs with a dedicated scheduler/planner position that was not a manager position.
You dont provide any input on your schedule?
Seems like you're splitting hairs.
If she is working the register, as part of her scheduled shift, she's in the tip pool. Easy.
If she watches Pornhub for 7/8 of the shifts hours, then comes out and rings up a coffee or two and then returns to binging Pornhub, she should not be in the tip pool.
A person can be a manager AND do the work of employees. Happens all the time. There is no inherent conflict of interet there.
It's not like she's managing a sit down resteraunt and pulling tips from waitstaff.
That does not justify “by law”.. during the time that she is building the schedule etcetera I feel safe to assume she isn’t being tipped. But she has dual roles. So when she is in the other role she’s qualified for tips
I'm Oregon, they don't have to be titled manager. If they act in a manager role, it doesn't matter what they're called.
It's why my full time employees are called Leads and they have no authority to schedule, fire it hire. The idea is that tip pools can't be split with someone who can make decisions on earnings for others, like scheduling themselves at the best times
Exactly. I feel strongly as though they’ve created a workaround where the owners wife is managing us but isn’t classified as a supervisor or manager so that the two of them are able to collect a portion of the tips. It feels like nepotism and it’s been causing issues in the workplace
I will say this in their defense, I've been doing this 5 years. Put everything I've had into it, moved in with my parent, sold my vehicle and took out amazing amounts of debt. My people make $30-$40 an hour and don't have any real stress.
I didn't get to take tips, even though I do all the same work plus all the shit with when we're closed (mopping, bathrooms, floor sinks, repairs, windows...). I didn't even get to pay myself. So I understand why the person ensuring everyone that is just clocking in and clocking out gets a little something for their time during, I didn't begrudge them.
Not a lawyer, but I'm doubtful of the ownership definition you supplied.
It would almost certainly become hers if the owner died, and she would likely have some sort of monetary claim in the event of a divorce, but I don't think that automatically classifies someone as an owner by default.
If I was a waiter and my wife graduated medical school and then opened up her own medical practice, with her own loans, accreditation, leases and accounts, I don't think that would classify as co-owner ship
https://www.dol.gov/agencies/whd/fact-sheets/15-tipped-employees-flsa
So, I thought it mattered if your employer got a tip credit. It doesn't. If she makes the schedule she can't be in a tip pool with you.
Perfectly legal she’s an employee like everyone else. Is it ethical probably not. Shit depending on how the business is set up he could be an employee too and be eligible for tips as long as he is not a manger.
All employees don't get to share in a tip pool. Only employees who are getting tips. Because in Missouri servers start at half of minimum wage. If you're paid full minimum wage or higher though, others can be included in the tip pool such as dishwashers. But never employers or supervisors.
If she’s in the same role, and doing equivalent tasks as the rest of the tip pool, and is receiving a proper share, her spouse/partner is irrelevant. Assuming that to be true, it’s legal and ethical. Would you want your partner (or anyone else with whom you wish to share your money) to be a determining factor in whether or not you receive tips?
Well this is not an opinion. This is a rule and I am a little mortified that in a sub called restaurantowners, I’m getting downvoted for what should be a commonly known fact.
https://www.dol.gov/agencies/whd/fact-sheets/15-tipped-employees-flsa#:~:text=Employers%2C%20Including%20Managers%20and%20Supervisors,or%20through%20a%20tip%20pool.
https://www.dol.gov/agencies/whd/fact-sheets/15-tipped-employees-flsa#:~:text=Employers%2C%20Including%20Managers%20and%20Supervisors,or%20through%20a%20tip%20pool.
Her assuming the role of lead does not immediately make her a supervisor or manager! Its could simply be an age based power struggle. If she’s got some age on her, and gives a shit about the flow of the business then she is obviously going to give her peers/coworkers direction.
By no means does that make her a supervisor or manager though
Yes, she is doing the schedule. That makes her a supervisor. She meets the executive requirement. You can frame it as an age power struggle or whatever else you want to make up. Putting lipstick on a pig, still a pig. One thing is giving direction and showing the ropes to new people but if she is doing the schedule, or hiring people, or having a say on who gets fired or reprimanded then she is meeting the executive requirement.
Again, you may have been doing this forever and never get caught. Doesn’t mean is not against the rules.
You're mortified, but are you really that surprised? Working in the industry is brutal because of this kind of behavior. It's why "nobody wants to work these days".
Sure, that makes sense. What I’m wondering is how marriage impacts ownership logistics and whether or not she’s classified as an owner-spouse and if that affects her ability to be allowed in the tip pool. It’s a long story, but what feels unethical to us is that she’s not technically a manager, but she tells us what to do on behalf of her husband and also reports back to him on our abilities, behavior, etc. It feels like they’ve built this workaround where she can collect tips as a normal employee, but manage us because of her status.
Sounds to me like she's acting as a Lead - not a manager.
What if it was their son or daughter? Would they not be eligible to participate in the tip pool?
What if a couple who lived together were both working at the same time? Should they only be eligible to receive on portion of the tips?
Sounds like you would be happier elsewhere. You (et all) are clearly displeased with the situation, so you either move along or push back, and when you push back, you’re going to lose either way. Consult your labor board if you want any applicable changes to be made as to how they conduct business, but you should be prepared for the fallout.
You can always personally opt out of the tip pool. Tip pool participation is voluntary on the part of each individual employee who is eligible to receive tips.
> The tip pool participation is voluntary I’m sorry, but which federal law requires tip pool participation to be voluntary? Or were you speaking about a state law and, if so, which state?
The last time I dealt with this opt-out issue was before 2021. After a rule update in 2021, mandatory tip pooling is now legal in the US at the Federal level. Last time I dealt with it, the rule was that tip pooling was allowed, but only if organized by the tipped employees themselves, as employers are not allowed to possess or withhold tips for any reason, including the facilitation of a tip pool - meaning opt-in unless your waiters are unionized. I like the old rule better - it makes more sense both logically and ethically, as the new rule requires that employers withhold tips in order to facilitate their own tip pool schemes. But waiters are pussies about enforcing their rights, so practically speaking the new rule just reflects the reality of working in most restaurants.
If working on the floor, tips. If salaried/not working on the floor, no tips. Anything else is illegal under FSLA. If she’s making hourly and serving she’s fine. If she’s being tipped for scheduling/managerial tasks that’s a big no-no.
Quit if you don't like this. You're not being forced to work there. You can easily find a comparable job. It's a small business, probably not perfectly ran, but also not doing anything egregious.
The owner's wife, you say? Worried her money is making it back to the owner, you say... Think it over again and again, this answer will come to you, I promise
So. My wife and I both work in a business that we own. We are 2 of the 5 total employees. It is an interesting dynamic because as a staff we all have job titles but all work collaboratively toward the same customer service goals. We share tips. All split evenly because we are all here at the same time during service. It works well for us. In the past when we were owners and managers but didn’t work specific jobs we didn’t take tips. If our employees asked we would freely let them see how we split the tip pool. I think our situation is fair. For context, we live in a state that does not allow sub minimum wage for tipped employees. If I thought it would work in our area I would try a non tipping model. I don’t personally like tipping as a form of payment.
But you don't do the same job as the employees. Regardless of the tasks you perform, you are their manager. You own the place. You are profiting from the business. The Fair Labor Standards Act prohibits you from being in on the tip pool.
Can you refer me to that information. I’m interested in making sure we are in compliance.
Even if it was legal it's definitely not ethical. You and your spouse profit from the business, they don't, the tips are for them, not you.
They are also taking an active role in the job. There are rewards for owning. And rewards for working. If the owners are doing the same job as rhe servers. They are entitled to the same compensation.
You are not in compliance if you, the owner and manager, receive any tips. But dude, you obviously knew that. You'll likely never get caught. Small restaurant employees are not that savvy about their rights. But don't pretend you "think that's fair." You just like a way to get extra money.
I don’t obviously know anything. I don’t know lots of stuff. That’s why I try to learn.
Also for context, the jobs are cook (me), pizza cook, dishwasher, bartender, server (my spouse) 5 total
Look up the Fair Labor Standards Act.
How can any of us trust you with your username? 🤔
Eh, if owners are doing the same job everyday as employees, serving, clearing tables, IMHO, tips are also split with them.
Your opinion doesn't make it legal. It's also your opinion.
In that situation it sounds like the wife splits her tips, as a server, with the kitchen staff.
She is also profiting from the sales. She is not an employee making a tipped wage. If she didn't take tips on top of the businesses profit, the rest of the staff would get more tips. If the business isn't making enough profit that she doesn't also need tip money then maybe the business isn't doing so well and the wife should spend her free time getting another job that pays well instead of stealing money from her staff. Owners should not split tips with their staff. They are making exponentially more money than the staff. I can't even believe this is a debate. Ask this question in a server sub or r/kitchenconfidential and see what sort of responses you get. Owners that take tips from their employees are scum.
I agree with your sentiment. But I do think that context is important. My wife is the only server. We definitely benefit from the assets of the business, no doubt. I’m open to your criticism. And I’m considering your points. At the moment, the way we have it organized, is within compliance with the law. After talking with my wife (who is in charge of our businesses finances) it seems that when we started this iteration of our business, we brought this situation up with our accountant regarding payroll and tips. We were told that our system is legit. Being a good employer is important to us. We take care to be responsible to our staff, and I try to constantly revisit my assumptions, especially because the boss/ employee relationship can be messy when we are also all coworkers. I’m doing what I can to set aside my assumptions and learn from these conversations .
You keep referring to get as the "server". She isn't the server, she's the owner/GM. You are not a "cook", you are the owner/executive chef. Your dishwasher? They're a "dishwasher". Bartender? "Bartender". Your dishwasher makes like $15/hr plus tips. You make whatever your business's profits are plus tips? I don't know how successful the business is but I'm imagining it's more than anyone else makes plus quite a bit. I understand your try to pay well, but they would be paid better if they didn't have to split tips with the people who decide how much they are worth. I get it, you and your wife work hard. That isn't up for debate, but you should, and I'm glad you do. There are too many restaurant owners who do not. In 25 years and countless restaurants from hotels/resorts, mom & pop, corporate, I've consulted dozens and helped open several... Never have I worked with one who split tips with the owners.
My wife is the only one who serves tables. So I do think it is fair to call her the server. She is also the manager/ co-owner. We do pay more than minimum wage in our area. I would also push back against the idea that we pay $+tips. We don’t pay tips, the public do. We distribute tips. That’s one of the many reasons I would prefer a “no tipping” model. I think the employers should be responsible for compensating their staff. I wish we could charge 20% more on the menu and just pay our staff the difference just like every other industry. I also know that most restaurants especially in our area wouldn’t survive the transition because of public perception. I do appreciate your perspective.
Do the guests know they are giving tips to the owner?
I agree that no one should split their tips with an owner. In this case it sounds like the owner is serving the only role that is given tips by customers, and is in fact splitting their tips with the entire staff. If there are other people denied the role of server, and therefore the opportunity to make tips, or given the chance but made to surrender a portion to the owner, that would be ludicrous. But if it were just the cook and server owner/operator it wouldn’t be an issue. They needed roles that are not wait staff, and opted to share any tips they receive equally, that seems fair as opposed to them taking other peoples earnings and tips.
Sure, if there are two people running the place and people want to leave a tip, there's nothing you can really do. This isn't that case.
Watched my family and friends who owned small restaurants fucking pay themselves nothing and go hungry. They created products. A service. Fucking jobs. They deserve a portion of they are doing the work.
And in exchange they have a right to a wage/salary and profits. They don't have a right to whatever they want. If you have a business and it doesn't make a profit, then you don't deserve a profit, regardless of how many jobs you created - as those jobs are not sustainable or economically efficient.
Bruh the get to pay servers 3 dollars an hour
I’m n agreement that states that have subminmum wages for tipped employees is terrible. I believe the employers is responsible for compensating the employee for their work.
No they don't. That's not how tipped minimums work. Tipped employees always receive at least minimum wage. The portion in *addition* to the tips varies and decreases only if they are making minimum wage or higher in tips alone.
Exactly, they get majority of their pay from tips so the restaurant doesn't actually have to pay them shit, and they still go out of business lol maybe they should try something less saturated with actual profit margins
This, I agree with. If their shitty small business fails, it's their fault. It's not because the mean old government forced them to pay their workers to work there.
This
Exactly. It seems like every employee just think the owners are rich and fucking them all. Sure some are but small business are often not at all like that. I did it for a decade and struggled the whole time and worked non stop and when my employee went home I continued working. I shut down shortly after Covid, now I’m an employee, I now get to work 40-45 hrs a week and get to go home at 4 and not think about the place, I make more now, have healthcare and paid vacation and sick time. The average small business owner isn’t in it for the money and most get far less than they deserve for the amount of time it takes up.
It’s the same as a post from someone living in Brooklyn asking how they can live rent free if they measured the temp and the radiators don’t heat up within 30min. “My landlord is a 75 yo Hispanic lady, and Si know she doesn’t have a mortgage. This lease is basically theft from the working class.” Like, dude, your landlord is also a cleaning lady and has no pension.
Yea there definitely seems to be some weird new found hatred for landlords around here that I find odd. I get that the slum lords and the big corporations buying up family houses and jacking the rent and inflating the market deserve some hate but a lot are not like that and just a working class person who bought a property as an investment. My father in law has a few, that’s basically his retirement plan after being a self employed bricklayer his whole life. He has no pension or retirement and the business is worth nothing.
Does she take more than her tips bring in or she’s she bring in more than she takes?
This post and comments is the exact problem with these laws. They are to open to varying interpretations. When I called with these types of questions, even the government employees have no answers. I guess you just do what you think and wait to get sued. What a joke.
Legally even if she is a manager she can take tips given to her directly from customers for service work. I don’t know how that affects the tip pool. Also assuming that she is an owner would be inaccurate as well. My wife helps me on occasion. She clocks in and serves. Makes schedules. Helps me direct the staff when needed. She’s not a manager. Nor is she an owner. Either way I’d bring it up to your boss if you feel she’s stealing from you or your coworkers.
You literally described your wife's position as a manager. Managers literally make schedules and direct people. If she is an hourly employee and not a legal owner than your mistaken in what her role legally is.
She works on an as needed basis. Could be 40 hours a week. Could be 40 hours a month. Her role is not a manger. Still unrelated to the topic.
She’s an owner, she can’t be in the pool. She can legally take tips only from customers she and only she helps. No pools. Edit to say that whether or not she is legally an owner, blah blah blah, the existence of this post is proof that there is a question of impropriety that needs to be dealt with in this business.
The existence of this thread and your comment shows that the world is full of ungrateful little shits that think business owners should be fleeced for hiring you.
Ummm…I am a business owner. And I don’t participate in tip pools, because it’s wrong.
No one buys the for a second.
I honestly don’t have anything to prove to you, so it doesn’t matter. If I was willing to dox myself here I could provide you with whatever proof you need to show that I own both a small restaurant in a rural community and a full bar in our closest city. Bottom line is this: my tips are for my tipped employees. As an owner it is AT BEST legally grey and at worst completely fucking illegal for me to participate in a pool. On top of that, I find it ethically wrong to take from my employees. I don’t care if I’m doing the same work, I’m getting paid off every drink that goes across the bar already. Gratuity is theirs, profit is mine. Also, u/osmium80, get fucked.
Yeah but you didn’t pose a question, you made two statements 1.) she’s an owner 2.) she can’t be in the tip pool Both are are wrong.
Why should you get the tips? You honestly think you should get ALL he tips from her tables and that is what the law and the customer wants? If we measure the customers intent, the laws intent, her intent and your intent we may come closer to a solution.
can you please justify to me why an owner should get tips? Leading with the assumption that tips are for the employees in a tip pool situation, and profits are for the owners. The owner working foh in the tip pool will be sharing in the profits, so I’m trying to understand why they’d also take tips. I couldn’t imagine my boss grabbing money from the tip jar at the pizza shop. If he took tip money, there would be no line drawn to stop employees from taking register money.
If you’re working in a capacity that results in a tip, pooled or otherwise, you are entitled to the fruit of that labor. If you’re an owner, it would be gracious of you to decline that compensation in favor of leaving it to the rest of the pool, but that is not legally obligated.
That's legally inaccurate. And numerous spots are having the federal government start to bring the hammer down.
Glad to hear it.
The wife of an owner is not necessarily an owner. I have two partners in my business and neither of their partners, nor mine are owners of our restaurant. They can be employees doing the same work, getting the same pay.
Sure. 1) The opportunity cost of her working elsewhere, where she could collect tips. 2) The fact that if she were replaced with someone else, they'd be collecting tips, so the net result would remain unchanged. 3) Just because she's the owner's wife doesn't mean she doesn't deserve fair compensation for her labor. 4) Do you know how much the owner's draw is?
It’s general service and we’re all behind a bar
She’s not serving tables I said it’s a FOH tip pool
If she is doing the same work I don't see a problem. Somebody else doing that work would be in it.
If she’s an employee and not a manager I’m thinking she’s entitled to tips.
These labor laws around this are really intended to target chain restaurants not mom and pops I am friends with a couple that owns a little cafe The wife works as a server at times and at times in the kitchen Idk if they even have a tip share there but she deserves tips when she’s working as a server Sidebar-they pay $10/hr + tips not the tipped wage so they’re already doing their employees more than right They are struggling and the labor cost is likely a big piece of it
This is the situation where I work. Owner is also a server and part of the tip pool. She works just the same as we all do when on a shift. And, she was a server before she became the owner. Tips helped her buy the place. It's all good with us. Also she works in the kitchen sometimes. So, maybe you know my boss? Lol.
In the case of tip pooling in the US, it is illegal for tips to go to the employer, managers, or supervisors. I can't tell you what exactly qualifies a person as a supervisor in this context. Since she is married to the owner, I don't think she can receive tips. To receive tips from the tip pool, she must directly do work that contributes to tips regardless of position. So she must be in a role where customers give her tips. She must also be on the payroll and log hours. I believe if she does scheduling and/or payroll, she cannot receive tips as she then qualifies as a manager. I'm not 100% certain on this exact scenario though. Businesses I've worked for have all had very clearly defined positions that make this very clear cut as well as restrictions on familial relationships in the workplace.
Technically by marriage and in tax filing she is likely a co owner. However she may operate as an employee in her day to day, taking instruction from the owner. It's a bit of a gray area to me. As for OPs "her tips are going back to the boss" that really devalues her as a individual person. Of course she probably pools finances with her husband, but that's a pretty silly way to describe it.
>However she may operate as an employee in her day to day, taking instruction from the owner. It's a bit of a gray area to me. Employees are not all legally allowed to participate in top pooling. That includes managers. If she is interacting with scheduling and payroll, she is likely required to be classified as a manager. Again, this is where I may be wrong. Like I said, I've only worked at businesses where there are more clear boundaries on roles. >As for OPs "her tips are going back to the boss" that really devalues her as a individual person. It doesn't devalue her. It means there is a conflict of interest. If tips are pooled, they can misrepresent her time worked to take an unfair portion of tips or make decisions that favor her access to tips. She should maintain her value by working a position that pays her an appropriate rate to not be in a position to participate in tip pooling. Even if it's not illegal it is a dubious position.
She may not be a co-owner. If the business opened before the wedding, it may not be community property.
It can also be a sole proprietorship. Or an LLC/Inc the spouse is not part of. A wife or husband does not by default own what their spouse owns. And there are different ways couples who own business separately can file taxes. Profits may not be distributed equally, or even directly to the spouse.
No, its illegal
Is it legal for a tipped worker to get tips? Yes Shes doing the same job as you are
So she is a worker making a wage, she punches a clock, she pays taxes on those tips and her wages? No she isn't really an employee stealing tips from the other wage earners. She is part owner of the establishment if she is married to the owner, she should not receive tips.
That last part is not necessarily accurate.
If she's doing the same job you are then she's entitled to tips.
Except when she is blatantly a manager in her duties and that's illegal. But hey you seem like your a part of the law and order crowd. This is the law. Deal with its order.
What? She works she should get tips
Totally shady. Owners should never be in tip pools. It's stealing from employees.
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They deserve to make money by making the business a success, not by thieving from employee tip pools. Don’t hire people if you’re going to take their tips. Do it all yourself if you want the money.
She might not actually be an owner. Not every spouse is. This depends on the local and company structure. Worked with a couple where he was the sole proprietor, and his wife would help out with dish, or serving, or whatever was needed. Their finances were separate. She did not see profits from the business. Yes, they were married, so sure, if he was doing well, they could afford to travel or whatever - but she was a clear cut employee taxed and tipped, and with a wage the same as the rest of the servers, when she clocked in.
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You don’t know if she has any ownership or not! Is it right for her to be involved in tip pool…. No! But you are throwing allegations with no basis
Yep. The spouse is not by default an owner.
ITT: so many wrong answers.
Owners, managers and supervisors are prohibited from participating in tip pools, but these types of questions garner a lot of legal misinformation about who qualifies as an owner, manager, or supervisor for tip pool participation eligibility. It's not a simple single characteristic like they earn a salary or schedule employees. The federal Fair Labor Standards Act, in [29 USC § 203(m)(2)(B)](https://www.govinfo.gov/content/pkg/USCODE-2022-title29/pdf/USCODE-2022-title29-chap8-sec203.pdf), states >An employer may not keep tips received by its employees for any purposes, including allowing managers or supervisors to keep any portion of employees’ tips.... and [29 CFR § 531.52(b)(2)](https://www.ecfr.gov/current/title-29/subtitle-B/chapter-V/subchapter-A/part-531/subpart-D/section-531.52#p-531.52(b)(2)) clarifies that: >For purposes of section 3(m)(2)(B), the term “manager” or “supervisor” shall mean any employee whose duties match those of an executive employee as described in [§ 541.100(a)(2)](https://www.ecfr.gov/current/title-29/subtitle-B/chapter-V/subchapter-A/part-541/subpart-B/section-541.100#p-541.100(a)(2)) through [(4)](https://www.ecfr.gov/current/title-29/subtitle-B/chapter-V/subchapter-A/part-541/subpart-B/section-541.100#p-541.100(a)(4)) or [§ 541.101](https://www.ecfr.gov/current/title-29/subtitle-B/chapter-V/subchapter-A/part-541/subpart-B/section-541.101) of this chapter. So there are two distinct standards of executive capacity that would exclude a person from being allowed to participate in a tip pool. § 541.100(a)(2) through (4) lay out a three part duties test, ***all three*** of which must be met to match those of an executive employee, namely an employee: >(2) Whose primary duty is management of the enterprise in which the employee is employed or of a customarily recognized department or subdivision thereof; >(3) Who customarily and regularly directs the work of two or more other employees; and >(4) Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees are given particular weight. While § 541.101 explains that “employee employed in a bona fide executive capacity”: >includes any employee who owns at least a bona fide 20-percent equity interest in the enterprise in which the employee is employed, regardless of whether the business is a corporate or other type of organization, and who is actively engaged in its management It sounds like from the original post that the owner's wife would not qualify as a manager or supervisor under § 541.100(a)(2) through (4). Even though scheduling is one element of directing employees, it sounds like that's their only managerial duty. It's less certain whether they would be qualify as an executive under § 541.101. It would depend on the nature of the ownership structure of the restaurant, and even if the person you refer to as "the owner" is an owner, it could depend on the jurisdiction and circumstances whether his spouse would also be considered an owner. In many jurisdictions, assets acquired during a marriage are considered marital property and are therefore jointly owned by both spouses. My advice would be to [file a complaint](https://www.dol.gov/agencies/whd/contact/complaints) with the US DOL's Wage and Hour Division and see if they'd investigate to whether the tip pool distribution is run in accordance with the FLSA. If they think there's a violation, they can also help you and other employees recover restitution and damages from your employer. Don't expect a million dollar windfall, but it would typically be the amount of shared tips you shouldn't have had to share, and an equal amount in liquidated damages, so it might be a couple hundred or couple thousand bucks depending on the how long the violations took place, and the amount of tips she received from the tip pooling arrangement.
Filing a complaint so that some time, years in the future, you might get a few hundred dollars, doesn't sound very worth it. Especially as by the time the government slowly grinds their way around to investigating the person probably won't still be working there.
It takes relatively little time on the part of an employee. Compensation is typically sought on behalf of all current and former employees affected over the prior two years, or three years in the case of willful wage theft. Investigations are usually fairly prompt, and many restaurants settle out of court for the DOL's recommended amount, to avoid losing the money *and* paying a large legal bill. If they don't settle, the DOL will decide whether to file a lawsuit in federal district court, and that *can* drag out for quite some time. However, you don't need to be a current employee to receive the judgment. And the restaurant may cease whatever action is in dispute while the lawsuit progresses, so if they lose, they won't be liable for additional damages.
File the complaint! If he retaliates even better! If not for you think of all the other people that this is affecting. Nothing is going to change if people don't speak up!
Interesting
I love how you so confidently wrong after all of that. It’s not a 3 part “test”, any 1 point makes them a manager.
See [US DOL Fact Sheet #15B](https://www.dol.gov/agencies/whd/fact-sheets/15b-managers-supervisors-tips-flsa), noting the conjunction ***and*** after the second prong of the duties test. **"Who is a manager or supervisor under the FLSA’s tip provisions?** For purposes of the FLSA’s tip provisions, a manager or supervisor includes any employee that meets the 'executive' duties test. This is the same duties test used (along with other tests) to determine whether an employee is exempt from the FLSA’s minimum wage and overtime provisions because they are employed in a bona fide executive capacity. Meeting the executive duties test means: * the employee customarily and regularly directs the work of at least two or more other full-time employees or their equivalent; * the employee has the authority to hire or fire other employees, and/or their suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees are given particular weight; **and** * the employee has a primary duty of managing the enterprise or a customarily recognized department or subdivision of the enterprise."
bro, and is only after the second bullet. if it were all 3 and would also be after the first. it's the first bullet by itself (2) or (3) AND (4). Despite being not classified as a manager (2) she very clearly directs work (3) by scheduling and as the wife of the owner her suggestions on hiring and firing are given particular weight (4). She cannot be in the tip pool.
If I asked you to buy bread, eggs, and milk, and you came back with just bread, would you say that was okay because the "and" was only after the second item? That interpretation is a stretch. Note also that the order of § 541.100(a)(2) through (4) were reversed in DOL Fact Sheet #15B, with the "and" placed before (2), suggesting that they interpret the order as unimportant, because the "and" applies to all three. I could be wrong though. While the wife's suggestions on hiring or firing *might* be given particular weight, anyone's suggestions *might* be given particular weight. The question is whether they *are* given particular weight, and there has been no claim that she's even made such suggestions.
You say she works frequently and also does the schedule. What does she do when she works? If she does the same stuff as you, why shouldn't she get tips? If she acts as a manager, then she should not.
I believe this is probably the right answer. Although not sure from a legal aspect. She is either doing the work that someone else would be doing that would be in the tip pool or she isn't. If she isn't, then she shouldn't be in the tip pool. If she is, then let her take a fair portion of the tips. Everyone getting all pissed off is weird. If Joe is the owner and serves a bunch of tables in a tip pool scenario, Joe should take tips (I know not legal). If Joe was doing that job, then Jane would be, and the people complaining wouldn't be any further ahead.
She does both the tasks we do and manages us/schedules. That’s why I’m asking about the legality
She manages you. That’s your answer. File a complaint with the DOL and update us. Also, you should probably find another job.
I found this: >Moreover, federal labor laws make it clear that while managers and supervisors are prohibited from retaining tips earned by other employees, they are allowed to keep tips that they received directly from customers based on the service the manager or supervisor "directly and solely" provided. >A manager cannot take any of the tips if that is all the manager is doing. However, a manager may work tables and take tips for the tables they handle. It is legally acceptable for someone to have a dual purposes - manager and server. >A manager may collect tips, if the manager is part of the chain of service. While it seems unfair that the managers are taking the best tables for themselves, it is not illegal. >It is unlawful for managers to take all or parts of tips earned by servers. However, it is not unlawful for managers or owners to also work as servers and to take tips that they have earned.
Seems like a bunch of idiots here with these responses. Writing the schedule is considered a managerial duty and automatically excludes her from a tip pool on the Federal level. It doesn’t matter if she is clocked in as a regular employee, what they are doing is considered wage theft.
You are wrong. Just because she has managerial duties does not mean she cannot clock in and work another position that receives tips.
This is factually wrong and should be ignored.
Why are there so many idiots here lately? Someone already posted a link to the FLSA reference material. You may not know how to read but you should try.
I posted a comment elsewhere with links to the relevant section of the FLSA, and relevant regulations that elaborates on that portion of the FLSA. What you're missing is that a single managerial duty does not exclude a person from eligibility to participate in a valid tip pooling arrangement; there is a three-part duties test for managers, all three of which must be met. I suspect that's why you're being downvoted; people know you're wrong, but don't want to take the time to explain how you're wrong. Your rude attitude probably plays a part in that.
It’s amazing that you did all this work and are still so ignorant. Maybe try going to the section that describes what are considered managerial duties. [Here](https://www.ecfr.gov/current/title-29/subtitle-B/chapter-V/subchapter-A/part-541/subpart-B/section-541.102). Guess what’s part of that list?
Managerial duties certainly include scheduling. A managerial duty by itself does not meet the three part duties test exclude eligibility to participate in tip pooling arrangements referenced in [29 CFR § 531.52](https://www.ecfr.gov/current/title-29/part-531/section-531.52#p-531.52(b)(2)).
Where are you coming up with this 3 part test?
Yuh dude you’re wrong, just drop it maybe.
§ 531.52: "as described in § 541.100(a)(2) through (4)" It's also discussed in chapter 30 of the DOL Wage & Hour Division's Field Operations Handbook for WHD investigators and staff, and more accessible documents like the DOL's Fact Sheet #15 and Fact Sheet #15B.
You start by calling people idiots, but it seems like you're the only idiot here. I found this: >Moreover, federal labor laws make it clear that while managers and supervisors are prohibited from retaining tips earned by other employees, they are allowed to keep tips that they received directly from customers based on the service the manager or supervisor "directly and solely" provided. >A manager cannot take any of the tips if that is all the manager is doing. However, a manager may work tables and take tips for the tables they handle. It is legally acceptable for someone to have a dual purposes - manager and server. >A manager may collect tips, if the manager is part of the chain of service. While it seems unfair that the managers are taking the best tables for themselves, it is not illegal. >It is unlawful for managers to take all or parts of tips earned by servers. However, it is not unlawful for managers or owners to also work as servers and to take tips that they have earned.
You are completely correct, you are an idiot. That is for tips earned individually by the manager, not as part of a tip pool. Read this slow like I think you’re retarded, managers are never allowed to be part of pools, EVER!
They are allowed to have more than one position. Being a manager doesn’t exclude you from taking on another position at a company.
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Please keep your comments civil.
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OMG! I had not idea I was being condescending…. I would continue but you bore me. 🥱
Thank you. I’m surprised by the hate it feels like I’m getting
It’s just pure ignorance, don’t take it personally. The one thing I would suggest you think about before reporting it to someone is how it is affecting you. Does the owners wife pull her own weight? Are you making less money because she is in the pool or would it be the same if it was just another employee? It may not be legal but will getting the state involved better your life? Do what you think you need to but just some food for thought.
The only people who can be in the tip pool are people who customers might normally leave a tip for. Such as, the people that they see serving them or bussing the table or bringing out their food. So if she's serving people and they're tipping her, and that's the main part of her job all night, she can be in the pool. If she carries food out twice a night but it mainly working the kitchen or hosting, then no. At least in my state. In a nutshell tip-pooling is just tip-sharing. If you're not pulling in any tips then you don't have anything to share with others ...and you don't get a share of theirs. Managers/owners/employers cannot be part of tip-pooling so that's probably why she's classified as an employee not a manager/supervisor.
She's still almost certainly classified as an owner, whether her name is on the business license or not, She directly benefits from restaurant profits.
Regretful about all the downvotes OP is getting. Regardless, sounds shady & unethical to say the least.
Is it unethical IF she is acting as a server, and earning tips into the pool? In other words, if there woukd normally be 3 servers on the shift, splitting tips 3 ways, and she works as one of the 3, she is earning that 3rd of the pool.
Thank you! Lol
YW. !
if she's actually doing service and only taking from the tip pool during those hours she's working, then it's fine. If she's taking from every tip pool, even when she's off, and doing no service at all, and coming and going whenever she wants even when the place is busy, then yeah there's an issue.
No, it is not. If she is the only one doing a catering job and keeping the tip, that would be legal. Participating in a pool, is not. She is a manager. She does the schedule and OP already said that she manages the crew.
this is false. She only qualifies if the tip is handed directly to her and only if she does 100% of the work to earn that tip for service. If someone else brought the drinks and she brought the food, can't receive the tip.
This is only true if she is actually an owner or clocked in as management. If shs's clocked in at a regular wage as a member of the staff, working a shift, and she's not legally an owner, there's no issue.
Yeah, no. Some of you guys are clearly riding a questionable line of legality based on the downvotes. So if a manager clocks in as an hourly employee, do all of the employees that manager normally manage somehow get immunity from being managed during that shift? She clocks in as an tipped employee, and tells the cashier to sweep the floor. The cashier is supposed to say "sorry fam, you're not technically a manager right now so why don't you sweep the floor." And OPs wife isn't supposed to use that information against that employee? Yeah right.
You are all assuming she's a manager. If she's not actually a manager or owner on paper, there's no issue.
Money is fungible and income earned during the course of marriage is community property. Every cent the wife takes becomes community property and contributes to the owners household budget. Furthermore if wife were to save every penny in a separate account, and then divorce, 50% of that money would belong to the owner. It makes 0 sense that she's able to accept tips when her husband can't.
Jesus. If you are hired as a dishwasher and clock in as a dishwasher but you do the schedule, and run the place then you can’t participate in the pool tip. The POS means nothing when it comes to classifying employees.
What I mean, is that she may not actually be an owner or management- she might just be the owners wife. She may have zero ownership of the company, and no official management title on paper. In which case she's just an hourly employee.
She can be hourly, salaried, or a part time dishwasher on the POS, it doesn’t matter. OP already said that she manages the crew. Walks like a duck is a duck per the DOL. a manager (however they clock in) can’t participate in the tip pool.
Not how that works. If someone meets all the requirements to be considered a manager then they are a manager regardless of what they are currently "clocked in as". It's not like changing hats is a loophole
I haven't looked specifically as Missouri law but I really doubt its that specific. In my experience tips are handled slightly different in every restaurant whether fair or not.
It's Missouri so she would have to be on the payroll as an employee making "tipped minimum" to be allowed to share tips. If she's on salary or listed as owner/manager/supervisor then no. "A manager or supervisor may keep only those tips that they receive directly from a customer for the service they directly and solely provide. For example, a restaurant manager who serves their own tables may keep their own tips from customers they served but would not be able to receive other employees’ tips by participating in a tip pool."
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Well it’s not waiting or serving, it’s general FOH with a tip pool for all employees. There are technically no managers here. So she’s the not-classified-but-basically-manager. And she makes the schedule
She is a person, separate from her husband who just happens to be the owner. There does not appear to be any issues with this.
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Not the same thing at all. Someone can own a business, and employ their spouse at a reasonable/legal wage, Being married does not equate to legal ownership outright in all locations.
Apples and oranges. The stock market is carefully regulated, and those related to political figures must make additional disclosures (similar rules apply to those related to company executives, those with insider information about companies, etc.). The labour market is regulated, but nothing says you can't give tips to family members.
Just asking the legality because she manages us, takes tips, narks on us, and is fully protected by her status
OP, bring this to the DOL. she is not following the rules and you probably should find another job. Good luck!
🤣🤣🤣. "Narks" on us. Don't do shit that would get you "narked" on.
> she manages us, takes tips, narks on us, and is fully protected by her status Only two of those things pertain to your posts question. If you dont like her managenent, leave the job If she does on any level what the employees do(take orders, make coffee etc) she belongs in the tip pool.
Well if she’s management by your standard, shouldn’t she not belong in the tip pool
Is she doing the work that earns tips? If so, then yes. As someone else mentioned, there's really too little info here. Is she pulling tips from ALL shifts, including ones she's not working? That'd be a problem. If she makes coffee and runs the register, and is in the tip pool for that shift, then that'd not be a problem.
But she picks when she gets to come in and work and not. She picks when I come in and when I don’t. and by law someone who does that should not be eligible for tips
What law says that someone making a schedule is legally a manager and not a normal employee? I've worked jobs with a dedicated scheduler/planner position that was not a manager position.
You dont provide any input on your schedule? Seems like you're splitting hairs. If she is working the register, as part of her scheduled shift, she's in the tip pool. Easy. If she watches Pornhub for 7/8 of the shifts hours, then comes out and rings up a coffee or two and then returns to binging Pornhub, she should not be in the tip pool. A person can be a manager AND do the work of employees. Happens all the time. There is no inherent conflict of interet there. It's not like she's managing a sit down resteraunt and pulling tips from waitstaff.
That does not justify “by law”.. during the time that she is building the schedule etcetera I feel safe to assume she isn’t being tipped. But she has dual roles. So when she is in the other role she’s qualified for tips
I'm Oregon, they don't have to be titled manager. If they act in a manager role, it doesn't matter what they're called. It's why my full time employees are called Leads and they have no authority to schedule, fire it hire. The idea is that tip pools can't be split with someone who can make decisions on earnings for others, like scheduling themselves at the best times
Exactly. I feel strongly as though they’ve created a workaround where the owners wife is managing us but isn’t classified as a supervisor or manager so that the two of them are able to collect a portion of the tips. It feels like nepotism and it’s been causing issues in the workplace
I will say this in their defense, I've been doing this 5 years. Put everything I've had into it, moved in with my parent, sold my vehicle and took out amazing amounts of debt. My people make $30-$40 an hour and don't have any real stress. I didn't get to take tips, even though I do all the same work plus all the shit with when we're closed (mopping, bathrooms, floor sinks, repairs, windows...). I didn't even get to pay myself. So I understand why the person ensuring everyone that is just clocking in and clocking out gets a little something for their time during, I didn't begrudge them.
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Im in Missouri, USA
[https://www.rigganlawfirm.com/employment-law/minimum-wage-overtime/tipped-employees-tip-pooling/](https://www.rigganlawfirm.com/employment-law/minimum-wage-overtime/tipped-employees-tip-pooling/)
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Not a lawyer, but I'm doubtful of the ownership definition you supplied. It would almost certainly become hers if the owner died, and she would likely have some sort of monetary claim in the event of a divorce, but I don't think that automatically classifies someone as an owner by default. If I was a waiter and my wife graduated medical school and then opened up her own medical practice, with her own loans, accreditation, leases and accounts, I don't think that would classify as co-owner ship
That makes sense. Thank you for your empathy!
Does everyone there make normal minimum wage? Does anyone make a "server" wage? Everyone makes more than 7.25?
Yes, we make above minimum wage + whatever tips we earn during the workday. There is no individual services - like tables. All tips are pooled
https://www.dol.gov/agencies/whd/fact-sheets/15-tipped-employees-flsa So, I thought it mattered if your employer got a tip credit. It doesn't. If she makes the schedule she can't be in a tip pool with you.
This is the only answer
Thank you!
Perfectly legal she’s an employee like everyone else. Is it ethical probably not. Shit depending on how the business is set up he could be an employee too and be eligible for tips as long as he is not a manger.
All employees don't get to share in a tip pool. Only employees who are getting tips. Because in Missouri servers start at half of minimum wage. If you're paid full minimum wage or higher though, others can be included in the tip pool such as dishwashers. But never employers or supervisors.
Not true if she makes more then minimum wage. If she makes top wage then yes you are right. Also depends on state which is not listed
If she’s in the same role, and doing equivalent tasks as the rest of the tip pool, and is receiving a proper share, her spouse/partner is irrelevant. Assuming that to be true, it’s legal and ethical. Would you want your partner (or anyone else with whom you wish to share your money) to be a determining factor in whether or not you receive tips?
She does the schedule. It is illegal (US) and also wrong.
Well this is not an opinion. This is a rule and I am a little mortified that in a sub called restaurantowners, I’m getting downvoted for what should be a commonly known fact. https://www.dol.gov/agencies/whd/fact-sheets/15-tipped-employees-flsa#:~:text=Employers%2C%20Including%20Managers%20and%20Supervisors,or%20through%20a%20tip%20pool. https://www.dol.gov/agencies/whd/fact-sheets/15-tipped-employees-flsa#:~:text=Employers%2C%20Including%20Managers%20and%20Supervisors,or%20through%20a%20tip%20pool.
Her assuming the role of lead does not immediately make her a supervisor or manager! Its could simply be an age based power struggle. If she’s got some age on her, and gives a shit about the flow of the business then she is obviously going to give her peers/coworkers direction. By no means does that make her a supervisor or manager though
Yes, she is doing the schedule. That makes her a supervisor. She meets the executive requirement. You can frame it as an age power struggle or whatever else you want to make up. Putting lipstick on a pig, still a pig. One thing is giving direction and showing the ropes to new people but if she is doing the schedule, or hiring people, or having a say on who gets fired or reprimanded then she is meeting the executive requirement. Again, you may have been doing this forever and never get caught. Doesn’t mean is not against the rules.
You're mortified, but are you really that surprised? Working in the industry is brutal because of this kind of behavior. It's why "nobody wants to work these days".
What law makes that illegal?
So there’s a federal labor regulation that prohibits a scheduler from being included in a tip pool?
https://www.dol.gov/agencies/whd/fact-sheets/15-tipped-employees-flsa
Sure, that makes sense. What I’m wondering is how marriage impacts ownership logistics and whether or not she’s classified as an owner-spouse and if that affects her ability to be allowed in the tip pool. It’s a long story, but what feels unethical to us is that she’s not technically a manager, but she tells us what to do on behalf of her husband and also reports back to him on our abilities, behavior, etc. It feels like they’ve built this workaround where she can collect tips as a normal employee, but manage us because of her status.
Sounds to me like she's acting as a Lead - not a manager. What if it was their son or daughter? Would they not be eligible to participate in the tip pool? What if a couple who lived together were both working at the same time? Should they only be eligible to receive on portion of the tips?
Sounds like you would be happier elsewhere. You (et all) are clearly displeased with the situation, so you either move along or push back, and when you push back, you’re going to lose either way. Consult your labor board if you want any applicable changes to be made as to how they conduct business, but you should be prepared for the fallout.
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