California Labor &
Employment Law Blog
Mar 2, 2009

Court of Appeal Says Bartenders May Lawfully Share in Tip Pool

Topics: Court Decisions, Wage & Hour Issues

In Budrow v. Dave & Buster's of California, Inc., the court upheld summary judgment for Dave & Buster's and rejected the plaintiff's claim that the restaurant's tip pooling policy was unlawful. The plaintiff in the case argued that the restaurant's tip pooling policy violated California Law because servers were required to share a percentage of their tips with bartenders who did not provide "direct" table service. The court rejected the plaintiff's argument and held that California law does not distinguish between "direct" and "indirect" table service for purposes of determining which employees can share in a tip pool. Instead, the proper inquiry is determining which employee or employees the tip was left for. According to the court, there is no bright line rule for answering this question and the answer may vary from restaurant to restaurant, depending on the nature of the service provided. In this case, the court held that it did not matter whether or not bartenders actually brought drinks to customers' tables. Even if they did not, the fact that the bartender mixes and/or pours drinks that are delivered to customers is sufficient to permit the bartender to share in the tip pool. The court rejected categorical exclusions on the types of employees that may participate in a tip pool, reasoning: "Given that restaurants differ, there must be flexibility in determining the employees that the tip was 'paid, given or left for.'" "Ultimately, the decision about which employees are to participate in the tip pool must be based on a reasonable assessment of the patrons' intentions." The decision is here.

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Robin Largent has a regular presence in California state and federal courts and has been lead defense counsel and appellate counsel for large and small California employers in litigation (and arbitration) ranging from individual discrimination and harassment claims to complex wage and hour representative and class actions. She also leads the firm’s appellate practice, having substantial experience and success handling appeals, writ petitions, and amicus briefs in both state and federal court on issues such as class certification (particularly in the wage and hour arena), manageability and due process concerns associated with class action trials, exempt/non-exempt misclassification issues, meal and rest break compliance, trade secret/unfair competition matters, and the scope of federal court jurisdiction under the Class Action Fairness Act.
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