h/t Shaw Valenza.
SV have good bloggers who know how to do law blogging, so I won’t repeat their work on Etheridge v. Reins Int’l Calif., Inc. What’s interesting is that this case sets out yet another standard for tip pooling. Now instead of “direct table service” we have “chain of service.” Interestingly, this sort of reminds me of a case about solid waste, which says something was waste when the former owner intended to discard it. The Court of Appeal in all of these cases does a lot of philosophizing about what diners must intend when they leave tips. Was there any evidence on the record? any surveys? Doesn’t sound like it.
Not that it matters de jure under California stare decisis rules, but these cases all come from the Second District. De facto, of course, most trial judges follow the Court where their cases go even though they aren’t bound to do so. So, here, it’s a tough call. Which panel will you draw? (afaik, only Division Six has a discrete geographical origin.)
Between this case, the Dave & Busters case, and the Leighton case, which this case actually seems to un-overrrule a little bit in comparison with the Dave & Busters case, I can’t tell you what the law is. I’m not sure I can even tell you what the safe thing to do is. (Are you give over someone’s property if you just leave it with the servers??)
Time for the Supreme Court to speak on this.
{ 7 comments }
Awww Storm, thanks! I like your blog too! :)
DGV
In 2004 a bill was introduced in the California Senate that would have changed California’s labor code so that tip pools including dishwashers and kitchen staff would not be in violation of California Labor Code.
Interestingly the courts have now ruled that such pools do not violate California Labor Code.
How can the courts rule that tip pools including certain types of employees does not violate California’s labor code when previously there was a bill before the senate attempting to change California’s labor laws so that tip pools including these certain types of workers would not violate state labor laws?
According to a recent court ruling employer mandated tip pools which include dishwashers and kitchen staff do not violate California Labor Code.
However, in 2004 a bill was unsuccessfully introduced in the California Senate, 1511, which attempted to change the California labor code so that employer mandated tip pooling which included dishwashers and kitchen staff would not be in violation of California Labor code.
Why would the Senate attempt to pass a bill changing California Labor code to the point where tip pools including dishwashers and kitchen staff would not be in violation of state law, unless such tip pools were in violation of state law?
How, can a judge now rule that that such tip pools are not in violation of state law when clearly such pools where considered to be in violation of California labor code in 2004. Has the Labor Code changed. Or, is this judge simply lying?
Here is the truth of the matter.
There are no tip pooling laws in California. There are only judicial opinions which suggest that it is legal for an employer to collect and take gratuties so that the employer can share the customer’s tip with workers in a way most financially beneficial to the employer.
Judges in California have ruled that it is ridiculous for an employee to presume that a tip given him is his and his alone. Subsequently, the courts have ruled that employers may take an employee’s tips so that they may be shared with workers whom the courts presume customers might have intended to tip.
The question that remains is, why shouldn’t an employee who is paid, given or left a tip assume that it is for him and him alone? If the customer didn’t want the employee to assume that the tip was for him and him alone, the customer had many options to avoid such misunderstandings. The customer could have given the employee the amount of tip he wanted the employee to assume was his and given the rest to those he also intended to tip. The customer could have given the manager the tip with instructions on how his tip was to be divided. The customer could have written instructions on the credit card receipt explaining exactly who he wanted to tip and how much he wanted each to have.
The fact of the matter is, there is no reason an employee who is given a tip should not assume that the tip given him is his and his alone. State laws support such logic by stating that gratuities are the sole property of the employee or employees to whom they are paid, given or left for. Since the tip was given to an employee, state laws support his claim that the tips given him are his and his alone. Sole property is commonly understood property which is not divide or shared.
Now, as to the conclusion that it is reasonable to assume that customers want judges deciding who may share in their tip when customer’s have every right and ability to share their tips for themselves. I believe that it is ridiculous for a judge to assume that he can read the minds of each and every customers and correctly guess at who they might have intended to tip. I believe that is even more ridiculous for a judge to assume that customers have authorized him to appropriate their private property for them.
Not only do I believe that it is unreasonable for judges to assume that customers have authorized judges to share their tips for them, I believe that such efforts on the part of California judges are in direct violation of section 356 of California’s labor laws which clearly explain that the law is passed for public reason and that such law is binding upon all departments of the state.
The Legislature expressly declares that the purpose of this article is to prevent fraud upon the public in connection with the practice of tipping and declares that this article is passed for a public reason and can not be contravened by a private agreement. As a part of the social public policy of this State, this article is binding upon all departments of the State.
Is it not fraud to suggest that state laws, rather than the public, is authorized to determine who the public is tipping?
Is it not fraud for judges to suggest that the public has authorized judges to share their tips for them?
Is it not fraud for judges to proclaim that it is ridiculous for an employee to assume that a tip given him is his and his alone when state laws clearly define tips in such a manner?
Is it not fraud for judges to suggest that state laws authorize the courts to give over control the customer’s private property, his tip, to business owners?
so what does a hard working waiter do
when he’s in a situation where contributing
to the tip pool leaves him with less than half
of the tips on his receipts/reports???
You write every politician, newspaper, lawyer, judge, tv station, radio station, labor agency you can get an e-mail address for. You protect your property as best you can and tell your side of the story.
One thing you do not do is give up. There are millions of workers out there like you. They don’t know what to do about the fact that their employer is stealing their tips and our government refuses to enforce our laws. We must speak out and speak out loud.
The messages we must get out are,
If customers want their tips shared, they have every ability to share them themselves.
Our government has no authority to determine who the customer’s private property, his tip belongs to.
Tip pooling is the right of an employee to share his tips with whom-ever he wants due to the fact that he is the only one who has been authorized to use the customer’s tip for what-ever purposes he wants.
Business owners are stealing the customer’s tip when they mandate that tips must be used to compensate other employees against the wishes of the employee whom was actaully presented the tip.
Tip jars, tip pooling, service charges and tip credits are all business practices devised to steal the customer’s tip.
Shaw, wouldn’t the fact that California’s labor laws explain that the laws on tips are passed for public reason, cannot be contraved by private agreement and are binding upon all departments of the state trump any arguement that rulings in regards to tips should rely on California stare decisis rules?
This is new to me. I just don’t understand how a court can rely on another court ruling when the previous ruling violates the very law it has attempted to intepret.
I like to know what the judge in this case was smoking when he made his ruling? If he broadens the interpretation of “direct table service” to “all in the chain of service”, including dish washers, then that leaves open the door to anyone or any company with interaction with the restaurant, like suppliers of the restaurant who supply the ingredients, cleaning supplies, etc, janitors, or the credit card transaction company, all of whom CAN, more or less have some effect on the diner’s experience. If ingredients are not fresh from the supplier, then the resulting dish would no be as appetizing. If cleaning supplies do not clean well or do not leave pleasant scent, then dining area would not be inviting, same if outside janitorial service is hired. If credit card company transaction system is down, there would be delays in transaction or customer would not be able to charge on credit. You get the idea… This ruling is simply ludicrous! I like to know who the judge was. Any idea?
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