Q: Is it legal to add a non-wage "employee" to our tip pool?
My boss 'hired' 2 family members that have zero experiance and dont really do much of anything but talk. They aren't being paid an hourly wage by the restaurant, but are being compensated by being included in our tip pool. Is this legal?
A:
No, it is not legal to include non-wage employees in a tip pool in California. Under California Labor Code Section 351, tips are the property of the employees who receive them and cannot be taken by the employer or shared with non-tipped employees.
In California, employers are required to pay employees at least the minimum wage for all hours worked. Tipped employees can be paid a lower hourly rate, but the tips they receive must be enough to bring their total compensation up to at least the minimum wage. Employers cannot use tips to meet their obligation to pay minimum wage.
In addition, only employees who regularly receive tips as part of their job duties can participate in a tip pool. Non-tipped employees, such as dishwashers or cooks, cannot be included in a tip pool.
If you believe that your employer is violating California labor laws by including non-wage employees in the tip pool, you may want to speak with an employment law attorney or file a complaint with the California Labor Commissioner's Office.
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