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It’s common for restaurants to require their servers and bartenders to share tips with – or “tip out” – other employees.
But Massachusetts’ law closely regulates who servers and bartenders can be required to share tips with.
In one of our recent cases, a server who worked at a popular Boston restaurant came to us because her employer was requiring her to tip out managerial employees called “bar leads.” The bar leads performed bartending work – making drinks, taking food orders, and so on – but also possessed managerial responsibilities.
For example, they had keys to the restaurant, handled the cash receipts at the end of the shift, could send employees home if the restaurant wasn’t busy, and generally acted as the “person in charge” in the absence of a higher-ranking manager.
Under the Massachusetts tips law, it’s illegal for an employer to require servers and bartenders to share tips with employees who have any managerial responsibility. In a food service setting, the only employees who are allowed to pool or share tips are “wait staff employees,” whom the statute defines as:
[A] person, including a waiter, waitress, bus person, and counter staff, who: (1) serves beverages or prepared food directly to patrons, or who clears patrons’ tables; (2) works in a restaurant, banquet facility, or other place where prepared food or beverages are served; and (3) who has no managerial responsibility.
Employers who violate this provision may be required to pay back the amounts the servers and bartenders tipped out to the managerial employees. If an employer is paying its servers and bartenders the so-called “tipped” or “service” rate – which, in Massachusetts, is $4.95 per hour – it can also be required to pay the difference between that rate and the full minimum wage for all the hours the servers and bartenders worked. On top of that, Massachusetts law provides that all damages for tips law violations get automatically tripled.
In this case, we filed a class-action lawsuit against the restaurant on behalf of the servers and bartenders. Ultimately, the restaurant agreed to a six-figure settlement.