Is my employer violating the law by using tip pool money to pay floaters?

UPDATED: Apr 11, 2011

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Is my employer violating the law by using tip pool money to pay floaters?

We have a position called a “floater” at our restaurant that mostly fills in as needed between the host stand and the expo line. However, they also oversee our sidework at the end of our shift before we are allowed to check out, assign our sections, hold access codes for altering checks, and generally direct our day to day operations. This position shares tips from the our tip out to the back of the house. It seems to me they are “agents” of the employer and this is illegal under CA Labor Code Section 350 and 351.

Asked on April 11, 2011 under Employment Labor Law, California


MD, Member, California Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

Well this is arguable of whether or not they are considered an agent of a floater or if they are actually W2 employees. A w2 employee can also be an agent of an employee and how they are compensated will depend on whether the labor commission in California has ruled upon this issue before. You should consider at least inquiring with the labor commission, but if your tip pool negatively impacts you in that you don't get tips, then no matter what set up is allowed, if you are not gaining the benefit of the tip pool as you would have without this person, then you absolutely need to inform the labor commission and keep an accounting of your tips.

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