I live and work in North Carolina. I work as a waiter at a restaurant and I receive a cash wage of $2.13 per hour and I regularly receive tips. I am required to participate in a tip pool to pay our busboys and bartenders for their services based on total sales. I am regularly paying more than 15% in "tipout" and I do not receive a payout from the tip pool. This means I am only keeping at 79% - 82% of the actual tips I receive for a 2 week pay period. According to the fact sheet for the North Carolina Department of Labor (http://www.nclabor.com/wh/fact%20sheets/Tip_Credit.htm), employees must retain at least 85% of their tips for a tip pool to be considered as a valid pooling arrangement, therefore allowing my employer the "tip credit" of $5.12 per hour toward my wages. I asses that this invalidates the tip pooling arrangement.
It certainly might invalidate the tip pooling arrangement. However, the question is: are you paid, with tips and all, more than minimum wage? If so, there is likely no claim for you. If you are not, then you may want to file a wage claim with the NC Department of Labor over the tip pool.
Kirk J. Angel, licensed in NC and TN, is an experienced attorney who focuses his practice on employment law. Mr. Angel, who has practiced employment law for more than 18 years, represents clients throughout North Carolina, Eastern and Middle Tennessee. This response is for general informational purposes and does not constitute legal advice. Additionally, this response does not create an attorney client relationship. If you need legal advice, please contact a lawyer in your state who practices in the appropriate area.
Tips are generally the property of the employee that earns them, but a valid tip pool may redirect a portion of your tips to other employees that may traditionally receive tips or perform tipped work. Under Federal law, there is no percentage maximum that your employer may reduce your tips by in contributing to a tip pool, but under state law, N.C. General Statute 95-25.3(f), there is the requirement that no more than 15% of your tips be taken from you.
Here's the main issue, and why you'll need to consult with a lawyer: If your employer is covered by the Federal Fair Labor Standards Act, you may not have a claim unless you're not being paid overtime and minimum wage in an appropriate manner. If your employer is a smaller business, and is not covered by the FLSA, it may be required to follow the 15% maximum found in the Wage and Hour Act.
Please consult with an attorney in your area to discuss this issue further, and see if there is any way you can recover and stop this practice. You may or may not be able to depending on your circumstances and the nature of your employer.
Years licensed, work experience, educationLegal community recognition
Peer endorsements, associations, awardsLegal thought leadership
Publications, speaking engagementsDiscipline