Thanks for the tip?
September 9, 2016 5:06 AM   Subscribe

I started a new part time job a little over three weeks ago, while I go back to school (yay!). I'm in Massachusetts. It's minimum wage but customers can leave tips. Think Chipotle, Moe's, Subway, etc. I was told that everyone was paid tips once a month based on the hours they worked. Today's paycheck is the tipped one. I wasn't paid any. Is that legal?

A caveat is that I generally don't interact with customers. I cook, prep, and clean. I don't put customer's food together and I haven't rang the register. I do occasionally answer questions or get them things like napkins if we run out. I was hired with this understanding, so I figured I wouldn't get tips. I was told, however, that everyone does (by other employees/shift leaders, it never came up with the owners. They are only there once or twice a week).

I'll ask the owners next time I see them, though I am admittedly nervous when it comes to that kind of stuff. In the meantime, is this legal? I can't find anything related to this situation on Massachusetts websites. Thanks in advance!
posted by blackzinfandel to Work & Money (9 answers total) 1 user marked this as a favorite
I can't speak to the legality. But based on the wording of your question, did they promise you tips when they interviewed or hired you? If an owner assured you that you would receive tips and then made up a reason to withhold them, I'd start looking for a new job.
posted by bunderful at 5:19 AM on September 9, 2016

Have you checked out this Massachusetts website regarding tips? It might answer some of your questions.
posted by Hanuman1960 at 5:27 AM on September 9, 2016

Response by poster: It didn't come up in the interview.

Yes, I saw that website and, unless I'm reading it incorrectly, it doesn't apply to my situation.
posted by blackzinfandel at 5:41 AM on September 9, 2016

Generally speaking, you want to start with the lowest-ranked person who can help. So, if you are supervised by some person lower than the big cheese, start there. Alternately, if the organization is large enough to have an HR or payroll department, it's appropriate to start there.

It's unlikely that the big cheese handles payroll. The person or office which handles such matters as your W-4 (withholding allowance options) would be a good place to start. Call them up (or go see them) and say "Everyone is telling me I should be getting some tips, but I didn't see any on this paycheck."
posted by SemiSalt at 7:36 AM on September 9, 2016 [3 favorites]

It sounds like an administrative error, but--tip pooling isn't mandatory. Were you paid at least minimum wage?
posted by praemunire at 7:50 AM on September 9, 2016

I used to work for minimum+tips, but not in Massachusetts, and I have also worked for unscrupulous people with sloppy payroll habits. But I am not an expert. That said:

This may or may not be the relevant section of the law. This seems to make it clear that tips can be pooled, but must be shared out among service people (not management) according to time worked. This from the Mass. government seems to clarify it-- tip pooling is legal, tipped employees have a unique minimum wage situation, you are entitled to tips if you got them in your shift. Tip pooling is permissible but not required.

It makes it clear to me that if you work, and people tip you, your manager cannot take that from you-- you are entitled to your tips. Your manager would not receive tips, unless they also served directly during that time period as a waitperson, bartender, busser, etc.

If nobody got any tips, your employer would still have to pay minimum wage ($8/hour.) If the team has a great night and get a bunch of tips, you get $2.63/hour from your employer, the additional balance from tip income to get you to minimum, and you would be entitled to your share of the tip pool from the time period that you worked if any was left over from the tip pool after everyone got minimum wage. This should be broken down on your pay stub, but if it is a small operation with an owner who also does payroll, it may not be.

If a customer puts a $100 bill in your hand for you alone, you are not legally required to share that in the tip pool (but if they put it in the jar, it goes in the tip pool.) The IRS requires you to report your personal $100 tip, but many people don't because paperwork is a hassle and they probably won't get caught for small amounts of cash-- it is up to your and your employer how you want to handle this. They may illegally insist that you put it in the pool. If you can hide your personal tips, you are screwing over the pool, hiding money from the IRS, and might sow discord with your coworkers, but you will personally make more money.

If you tell your employer about your personal $100 tip, they may recalculate your hourly rate based on your tip (that is, if you worked for one hour and received a single $100 tip, they would be required to pay you $2.63 of their money, $5.37 of your money from your tip to get you to minimum wage, your personal tip balance of $94.63, and a one-hour's-worth share of whatever's in the tip pool. Subtract taxes and other withholding.)

Employers will sometimes claim there was less in the tip jar than there actually was, so they may try to pull a fast one and pay you minimum plus what they think that you think is a fair tip pool share, and help themselves out of the unreported cash. But sometimes there just aren't that many tips, and you make $8 and some change per hour. (This is why it sucks and should be illegal to pay someone less than minimum wage before tips, but that's another question.)

I would calculate what they owe you and ask about it (something like "I worked for XX hours during this pay period-- I'm confused, where are my tips?") because if you serve people, and people tip you, then they have to give you that income. It may be a paperwork error, it may be your employer thinking you won't catch it, it may be sloppy IRS reporting. Either way, be polite and assertive and make them explain it to you. If the explanation is insufficient, check with the friendliest veteran server at work, if possible, to see if they have any insight into why you aren't getting tips, and if that still doesn't work, bring it to the Fair Labor Division.
posted by blnkfrnk at 7:54 AM on September 9, 2016 [3 favorites]

What blnkfrnk is saying would be roughly true if you were working for minimum + tips, but from what you said it sounds you're actually working for plain old minimum wage (currently $10 per hour in MA, fwiw).

One of the pages blnkfrnk links to specifically says that "tip sharing with expediters and other employees who don’t service customers directly" is a common *violation* of tip sharing law. It doesn't sound like you service customers directly.

Maybe your shift leads and coworkers haven't dealt with someone in your non-customer-facing position before; they might not know what they're talking about.
posted by mskyle at 8:29 AM on September 9, 2016 [3 favorites]

Response by poster: For what it's worth, I do clean/clear tables every hour or so through out my shift. I don't know if that counts.

A coworker just told me that the tips haven't been calculated yet and no one has gotten them. I'll wait a little longer to see if I do end up getting them. If it turns out I don't, I'll see if I can help on the register in addition to my other duties. Supposedly the tips are equivalent to about an extra $2 an hour, so I really don't want to miss out on that.

Thanks everyone!
posted by blackzinfandel at 9:36 AM on September 9, 2016 [2 favorites]

It's also possible that the tips are counted monthly but you have only been there 3 weeks. Assuming your description of how it works is legal, it's possible that you have to be there a full month to qualify for a monthly payout. No idea if this is true, but it might be another explanation for why you didn't get any this time.
posted by CathyG at 10:27 PM on September 10, 2016

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