I work at a restaurant in CA, and my employer deducts my claimed tips in-full from my weekly wages. According the the California Labor Code 351, these tips belong to me:
“No employer or agent shall collect, take, or receive any gratuity or a part thereof that is paid, given to, or left for an employee by a patron, or deduct any amount from wages due an employee on account of a gratuity, or require an employee to credit the amount, or any part thereof, of a gratuity against and as a part of the wages due the employee from the employer.”
In fact, the Department of Industrial Relations own webpage has this exchange:
Q. My employer deducts my tips from my paycheck. Is this legal?
A. No. Your employer can neither take your tips (or any part of them), nor deduct money from your wages because of the tips you earn. Furthermore, your employer cannot credit your tips against the money the employer owes you. Labor Code Section 351
So, my employer should not being doing this, right? I’ve worked in a restaurant in CA before, and it’s happened to me there, too. Am I just very unlucky, or is this a commonly broken law?
I would print that page and take it to the supervisor, asking for reimbursement of all tips deducted previously. If that gets you nowhere, I’d call the state and call a lawyer.
All this is predicated on you being in a position to lose your job, of course.
Are you sure that they’re not just deducting a portion of your paycheck for the taxes due on those tips? Because admittedly, it’s been decades since I was a tipped employee in CA, but that’s the way I remember it.
You’re supposed to report the tips you earn to your employer and they deduct, from your paycheck, the appropriate taxes on your hourly wage PLUS the taxes on the tips you earned.
If they really are deducting your tips and not just withholding the taxes on those tips (as a previous poster suggested) then call the CA atty general’s office and report them. Complaining about it yourself to your boss could get you fired.
You saying you get paid a base wage of X per hour, and they ask you how much in tips you make, and then deduct that amount from your paycheck? So say you get paid $10 an hour and you worked 5 hours and got $20 in tips… Instead of the $50 ($10 X 5hrs) owed you only get $30? That can’t be legal. It would also be a violation of federal law if those deductions leave your wage below the applicable federal minimum wage.
I don’t know California law, but there are states (Wyoming being one example) that have two minimum wages. The one for employees that receive tips is substantially lower – below Federal, in fact.
Tell the boss a patron asked what happens to the tip he gives you; you told him, and he said he was a labour lawyer and said that he or any lawyer could do a class action lawsuit against the restaurant for all servers’ back tips if one of the servers asked him. Ask the boss if the guy was blowin’ smoke or if this is true… See if he sweats.
I’m more familiar with WA law, but we have a similar rule - you get paid minimum wage (or a higher agreed-upon rate) and any tips are above and beyond that.
When I do payroll for clients at restaurants, the pay stubs show that we usually have to do the following:
Calculate wages from hours
Add tips to wages
Calculate federal withholding, social security, medicare based on the combined total.
Subtract withholding to calculate net pay
Subtract the tips (assuming that tips are paid nightly, which is usually the case)
Since the tips were paid nightly, it’s just subtracting out a cash advance where the employee has already received the money. I think my pay stubs make it pretty clear, but I could still see how someone might misunderstand the calculations.
Doublecheck on the tax thing before you blow a gasket. The Feds require them to withhold for tips.
Many, many moons ago when I waited tables, my checks were usually around $20 or so for two weeks due to the withholding for income tax. I got my tips in cash nightly.
So my paystubs looked something like this*:
$120 (60 hours at $2.01, which was the minimum for a job with tips)
$75 (income tax withholding for the $120 plus tips estimated at required fed rate of 8% of sales)
I think you are reading this wrong. To me, the law says that the employer can’t take money out of your paycheck, because of tips i.e. “I hired you at $15/hr. You made $10/hr in tips, so I only have to pay you $5/hr”
But this isn’t the employer taking money out of your wages, it’s the government taking money. Your employer just happens to be the instrument that the government uses.
It looks like Labor Code Section 351 is all about the employer not being able to use your tips as part of the wages you and the employer agreed on.
Speculation is getting to be silly at this point. Bales asked the question four days ago, and doesn’t seem interested in coming back to clarify anything or answer our questions. Especially the big question:
Are the tips themselves being deducted or just the withholding tax on the tips?
You plan on participating in your thread, bales, or should we just move on to somebody who is actually interested in the answer to their question?
I’m going to assume that bales misunderstood and thinks that one’s tips are free from taxation. I’ve done more than a few waiting jobs, and while you are supposed to declare your tips for tax reasons, the employers don’t otherwise care…unless they’re paying you below federal min. wage. I haven’t worked in CA, but what the employer wants to see is that you are making enough to total at least minimum wage hourly. Otherwise, the employer has to make up whatever is short. So if you make 3.35 an hour from your employer, and the min wage is 5, you’d best declare at least 1.75 an hour in tips or the house is on the hook for it.
Now, one of the advantages of working service is that you really don’t have to declare all of your tips, if you get them in cash. But I had one restaurant make it clear that anyone who was barely making min. wage including tips must be a really crappy waiter and might get replaced. I don’t think it’s ever been an issue for me; I made more than min. wage even working at pizza places.
But yes, one does need to declare tips with their employer, for tax reasons, though I can see how the wording in the leglislation or whatever might have confused the OP.
While this is true federally, and in most states, it is no longer true in California. In California, tipped employees are fully subject to the same minimum wage as everyone else, excluding tips.
Looks like CA has a fair amount of company, actually. I’ve never heard of this before, but I bet people are expected to tip 15% like all the states allowed to pay significantly less… (And what’s wrong with Virginia?? Your pay can be 100% made up in tips!)
Of course, if you’re terrible at your job and work in a low-end restaurant, it’s possible to make below minimum wage, since the hourly rate at the time was $2.13/hr for tipped employees.
I don’t think it’s ever been an issue for me; I made more than min. wage even working at pizza places.