Cal Labor Law nicely summarizes Budrow v. Dave & Buster’s of California, Inc. This case overrules the DLSE and an older 2nd District case (or at least the DLSE interpretation of it) forbidding tip pooling for employees who don’t provide direct table service. The Court of Appeal refused judicial notice of the DLSE’s interpretations manual. Ouch.
Until this is approved by the Supreme Court, I’d guess that we will see a split of authority eventually, but until this, California rules of stare decisis control in all of the state’s trial courts, and so is safe for now.
I think this rule makes more sense personally, though I wasn’t convinced by the Court’s argument that you can’t say who provides direct table service or that the Legislatures refusing to add that language in its revisions of section 351 means they didn’t intend it. Perhaps they didn’t add it because they were happy with the law as interpreted by its enacting agency…
