The significant language in this case is on page 16:
…the legal principles prohibiting an employer from requiring an employee to share his or her personal top with the employer’s agent (“mandatory tip pooling”) do not logically apply to an employer policy requiring equitable apportionment of the proceeds in a collective tip box (“tip apportionment”)
So—shift supervisors can share in tip proceeds like the advance sheets say? Not so fast.
This is what you might call a highly fact intensive situation. It’s hard to say, of course, what was outcome determinative in this case, but here are three important things to consider before rewriting your employee handbooks:
(1) Starbucks has a relatively complex formula and procedure for allocating tips and placing the tip container.
(2) Starbucks shift supervisors were in the record as performing the same tasks as the Baristas about 90% of the time and only having “reporting” authority to the managers.
Those two were in the opinion. Then there’s this:
(3) Starbucks may not have invented the tip jar, but they may it ubiquitous. It’s been in the news, it’s been on TV, and we all know that it’s not quite the same thing as a personal tip. In other words, we have socially understood expectations and rules about the Starbucks tip jars that we may not in other situations. I know the case law was said to be irrelevant, but much section 351 case law discusses “intent.”
So, unless you have these things all going for you, I think it might be inviting disaster to just label this a “liberalization” of tip pooling rules. We may or may not get a more definitive rule from the California Supreme Court, but an amendment to the law from the Legislature telling us exactly how this is supposed to work in the modern workplace would be best.
P.S. Instead of citing evidence on the record, or taking judicial notice of some kind of market data, the Court cites another court case for the seemingly factual proposition that “‘tipping the providers of personal service’ is a ‘well-accepted part’ of our daily lives.” Does anyone else have a problem with this?
I don’t have as much of a problem with that as just saying it, though in this particular case, it doesn’t seem to be something objectionable, but I don’t want to create that slippery slope. Why is case law citable for facts?
{ 2 comments }
what the court said was that Starbucks didn’t owe $105 million to 100,000 workers (less supervisors).
why a tip jar (subject to distribution to supervisor) differs from a tip tossed on a restaurant table (subject to only pooling but not to supervisors) eludes me.
the opinion noted starbucks’ workers could freely pocket any tip handed to them personally. do restaurant tips handed to the server fall outside of the scope of restaurant tip pools? can a server keep any money handed to them directly by a customer, or can an employer require these funds to be pooled (as I thought)? the opinion suggests the fact workers could keep “personal” tips helps distinguish the common nature of the tip box (in addition to the fact that supervisors and workers performed common tasks).
however, that a 4″x4″ unmarked plexi box near the register is some sui generis not-before-seen money-thingy rather than an express tip pool isn’t obvious to me (I’d thought the traditional rules — no sups — would apply).
tossing money in a box or on the table after a meal generally means I want to reward the chain of (I’ll go with that, rather than just “direct”) service; I don’t understand why a box-fed slush fund differs from the cash swept up from a table by a server/busperson after the meal.
the individually-handed v. common tip has some intellectual attraction (e.g., workers can keep anything directly given to them by a patron but must pool anything not directly given a person), as it directly relates to customer intention. however, despite the recent opinionS giving weight to the supposed intentions of customers, they allowed the employer (or the court) to guess these, or to estimate what the bulk of customers intend, rather than to seek out individual intents in the thousands of daily tip transactions.
I think the personally-handed-by-customer (no pooling; no taxing by supervisors) v. left-behind-by-customer (pooling; distribute to everyone in the chain) (and whether in a box or on a table) distinction would more accurately handle the individual intents.
Kent:
I think the bottom line is that Courts are walking back the old rule, and they are hanging their hats on some interest “facts” to do it, and I think the distinction you’re not seeing doesn’t exist apriori, just in Starbuck’s own policy. In other words, you’re correct. There is no obvious distinction in the abstract.
Which is why I say it’s perilous to duplicate this situation unless they really are only titular supervisors and you have a strongly equitable policy like Starbucks did.
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