The Battle Over Who Gets or Shares the Tip: U.S. Labor Department, labor groups battle over an old custom in the United States

Tipping, how restaurants allow gratuities, is a good practice that should continue despite controversy, says a waiter and now labor leader.

Joshua Chaisson, a veteran server in Maine and one of the leaders of the recently formed Restaurant Workers of America, says providing good service is an entrepreneurial activity. It is one that leads to generous tips, he says, noting that he and others make a good living from happy customers. He says his group is an association with about 1,000 members.

Exploited Waiters and Waitresses?

However, critics charge tips are part of a system that leads to exploitation and sexual harassment.

Chaisson condemns any form of harassment. But he says tipping should not be changed. And that he adds that those restaurants now pooling tips or that want to do so, should be allowed to do so because this will give non-waiters, those working in other parts of the restaurant, a chance to obtain more income. But, most importantly, tipping should not be ended, he adds.

“We like the system as it is now. We like the freedom and flexibility of our jobs,” he says. “We don’t need to be saved by them,” Chaisson says of tipping critics.

The “them” that he is referring to include the Restaurant Opportunities Center United (ROC), whose co-director, Sara Jayaraman, argues “tipping is wrong.” She says tipping should be replaced by “one fair wage.”

Trump and Tipping

These latest battles over tipping are because of a proposed new Trump administration/U.S. Department of Labor rule that would give the restaurant industry more flexibility over gratuities and how “tipped” workers are paid (Please see notes. “Who Are Tipped Workers and What Is the Rule?).

The pending rule would allow restaurants in most states to pool tips provided it doesn’t clash with local law. (See notes: “What About Tip Pooling in New York?”).

The Slavery of Tipping?

ROC, in various publications, links tipping to slavery and notes other societies discourage tipping.

“Only in the United States” do tips provide the bulk of an employee’s income, according to an ROC paper. Tipping causes worker exploitation, it contends.

“Servers, and in particular women, can receive larger tips if they touch their customers, call customers by name, smile, crouch next to the table, and engage in other similar behaviors. This puts workers who depend on tips in a difficult position when faced with inappropriate customer behavior,” the ROC writes.

Chaisson calls ROC “the scientology” of the restaurant industry and supports the Trump proposal.

“It is a pragmatic and sensible plan,” he says.

Movie Star in Middle of the Controversy

However, actress Jane Fonda, an ally of the ROC, complains in an on-line video that, “Restaurant servers are about to be totally screwed by this rule.”

Still, Chaisson argues that no server would work at a restaurant where the owner steals tips.

The Trump administration’s pending policy change would reverse an Obama administration rule. The Obama Administration held tips were the exclusive property of waiters.

Sharing with Non-Waiters

Nevertheless, the new proposal “would allow tip sharing in a manner currently prohibited by the regulation, including sharing tips with employees who are not customarily and regularly tipped (e.g. restaurant cooks and dishwashers) through a tip pool,” according to the Notice of Proposed Rulemaking in the Federal Register of December 5, 2017.

The Labor Department, in the same filing, said the rule would help reduce “wage disparities” at restaurants. This is a position backed by the restaurant industry officials, who support giving restaurants more flexibility.

They say that, in states where the minimum wage has been raised to $15 an hour but waiters receive all or the bulk of tips, there is a growing wage disparity between those working in the dining room and in the kitchen. They argue pooling would help minority groups.

“Given the demographics in restaurants,” says Angelo Amador, executive director of The Restaurant Law Center, “where kitchen staff skew minority while dining room staff skew non-minority, it is especially important that federal law not impose barriers to kitchen workers receiving greater earnings.”

Keeping Pay Low?

Still, critics of the tip pooling proposal say the new rule would be used as an excuse by employers to keep pay low.

But Chaisson, who identifies himself as a Democrat and a member of “the resistance,” agrees with Trump.

“There is very little on which I agree with the President,” he says. “But in this instance, the proposed rule from the President’s Labor Department has been the victim of fake news.”

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NOTES:

Who Are Tipped Workers and What Is the Rule?

Tipped workers are anyone who receives more than $30 in tips a month, according to the Fair Labor Standards Act.

Under current law, “the employer is prohibited from using an employee’s tips for any reason against its minimum wage obligation to the employee (“tip credit”) or in furtherance of a valid tip pool.”

However, the current law also stipulates that, “a valid tip pool may not include employees who do not customarily and regularly receive tips, such as dishwashers, cooks, chefs and janitors.”

What About New York Tip Pooling?

Tips in New York can only be shared by non-managerial employees under current state law, according to Angelo Amador, a lawyer with the Restaurant Law Center, an industry group.

Amador, quoting New York state law, says “No employer—shall demand or accept, directly or indirectly, any part of the gratuities, received by an employee, or retain any part of a gratuity or of any charge purported to be a gratuity for an employee.”