Etheridge

In the majority opinion, this court concludes that participants in mandatory tip pools need not provide direct table service; any employee who contributes to the service a patron receives may participate in a tip pool. I write additionally and separately to address the issues surrounding whether the law requires a mandatory tip pool to be fair and reasonable in order to avoid violation of Labor Code section 351.

Etheridge’s operative complaint alleges, “Defendants collect and require that ‘servers’ tip out of seven percent (7%) of their food sales to the kitchen”; “Defendants collect and require that ‘se[r]vers’ tip out of seven percent (7%) of their drink sales to the bartender”; and “Defendants collect and require that ‘servers’ tip out of five dollars ($5.00) for every one thousand dollars in sales to the dishwasher.” The “tip out of’ language is ambiguous; it is not clear if Etheridge is alleging that defendants required him to give (1) an amount equal to 7 percent of the amount of their food, and drink sales to the kitchen and bartender respectively; (2) an amount equal to 7 percent of their tips based on food and drink sales to the kitchen and bartender respectively; or (3)…

I concur in part 1. of the majority opinion, allowing plaintiff and appellant Brad Etheridge (Etheridge) to pursue the instant appeal. I otherwise dissent.

It is my view that employees who do not render direct table service may not share in the proceeds of an employer-mandated tip pool. I would hold Etheridge properly pled a cause of action against the employer for its mandatory tip-pooling policy which required him to share tips with employees who “do not provide direct table service and are back of the house employees.” Because the complaint is well pled, the trial court should have overruled the employer’s demurrer.

The judicial underpinning of the majority opinion here, which broadly expands the scope of employer-mandated tip pooling, is Leighton v. Old Heidelberg, Ltd. (1990) 219 Cal.App.3d 1062 [ 268 Cal.Rptr. 647 ] (Leighton). Leighton held employer-mandated tip pooling is not prohibited by Labor Code section 351. (Leighton, supra, at p. 1067 .) 1 However, Leighton flies in the face of section 351, which provides “[ejvery gratuity is hereby declared to be the sole property of the employee or employees to whom it was paid, given, or left for.” (Italics added.) Because…

Tip pooling, a practice by which tips left by patrons at restaurants and other establishments are shared among employees, is a common practice throughout California and the nation. No California statutes expressly address the practice. In this case, restaurant servers challenge the legality of a mandatory tip-pooling arrangement, whereby, as a condition of their employment, the servers must share tips with certain other employees at the restaurant. While the servers do not contest the requirement that bussers share in the tip pool, they challenge the inclusion of employees who do not provide “direct table service.” The trial court sustained the demurrer of the restaurant without leave to amend, on the basis that employees who do not provide direct table service may, nonetheless, participate in mandatory tip pools. We agree and, therefore, affirm.

*911 FACTUAL AND PROCEDURAL BACKGROUND

Defendant Reins International California, Inc. (Reins), operates several restaurants in California. Brad Etheridge and Hannah L. Hannah are, or were, employed by Reins as servers; they brought their complaint on behalf of the class of all persons who are, or have been, employed as…

Tip pooling, a practice by which tips left by patrons at restaurants and other establishments are shared among employees, is a common practice throughout California and the nation. No California statutes expressly address the practice. In this case, restaurant servers challenge the legality of a mandatory tip-pooling arrangement, whereby, as a condition of their employment, the servers must share tips with certain other employees at the restaurant. While the servers do not contest the requirement that bussers share in the tip pool, they challenge the inclusion of employees who do not provide "direct table service." The trial court sustained the demurrer of the restaurant without leave to amend, on the basis that employees who do not provide direct table service may, nonetheless, participate in mandatory tip pools. We agree and, therefore, affirm.

Defendant Reins International California, Inc. (Reins), operates several restaurants in California. Brad Etheridge and Hannah L. Hannah are, or were, employed by Reins as servers; they brought their complaint on behalf of the class of all persons who are, or have been, employed as servers by Reins within the four years…