Tuesday, January 26, 2010

Sushi Chefs CAN Participate in Tip Pools


The DOL found that itamae-sushi chefs and teppanyaki chefs were tipped employees under the FLSA, eligible to participate in employer-mandated tip pools.

Section 3(t) of the FLSA defines tipped employees as “any employee engaged in an occupation in which he/she customarily and regularly receives more than $30 a month in tips.” 29 U.S.C. § 203(t). Section 3(m) allows tip-pooling among employees who customarily and regularly receives tips. 29 U.S.C. § 203(m); see also 29 C.F.R. § 531.54.

Itamae-sushi chefs and teppanyaki chefs have direct contact with customers, at the bar counter area (itamae-sushi chefs) and at customer tables (teppanyaki chefs). In support of its opinion, the DOL cited its “longstanding position that counter persons who serve customers may participate in tip pools. Citing FLSA Field Operations Handbook § 30d04(a); Wage and Hour Opinion Letter 1/25/83 (waiter chef who brings food order from kitchen to table and cooks it on hibachi grill in front of customers may share in tip pooling).


Employers should note that not all chefs and cooks may participate in tip-pooling arrangements. Only those who have regular customer contact may do so. Similarly, servers, bellhops, bus persons, counter persons and service bartenders may participate in tip-pooling arrangements. Dishwashers, for example, cannot participate in tip pools. Employers also should note the variations in state laws regulating tip-pooling arrangements. See, e.g., California Division of Labor Standards Enforcement Opinion Letter dated 9/8/05 (tip pool should include only “those employees who contribute in the chain of the service bargained by the patron,” and should exclude any supervisory employee “with the authority to hire or discharge any employee or supervise, direct, or control the acts of employees”).

5 comments:

  1. This says teppanyaki chefs and sushi chefs can participate in "tip-pooling." What about when the employer (Japanese restaurant) is requiring that the server tip the teppanyaki and sushi chefs 7.5% of our food and beverage sales and not a portion of the actual tips received? At my restaurant, we tip out the above stated percentage of our sales, even though many times customers (particularly tourists) don't tip us, or are tipping more closely in the range of 10% of the bill. In these instances, we end up paying the chefs more than we take home and can tip out to the chefs, sushi chef, bartenders and bussers amounts in the range of 50% to 70% percent of the tips we receive. It seems unfair. Any guidance would be greatly appreciated.

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  2. The high amounts you are forced to tip out can be violations of the FLSA. You need to contact a hospitality lawyer who also does labor law.

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  3. I hear you. I also work for a japanese restaurant in Miami. Everynight I have to tip out 7.5% of my total sale to the chefs who cook at the table.
    The restaurant does not automatically add tips, so customers tip what they want. Sometimes it could be nothing. Yet we still have to tip out. I know
    they supposedly entertain the customers. Sometimes, they get side tips for a job "well done" and they get to keep that, we don't get to share that.
    If they do a bad job, customers blame us and don't tip. we still have to pay. We tip out a total of 10% of out total sale between the bar, chefs and
    bussers. the total sales can also include $200 to $500 in beverage sales. Is it legal for the restaurant to make us tip out on the beverage sales that the chefs have absolutely nothing to do with, and then tip out again to the bartender. Most of the time, we go home with very little money if we are lucky. Sometimes, we go home with minus $($20 or even $60). Is that legal, fair or reasonable? Where can I find free help to see if we are being abuse? I can't afford a lawyer and don't know what to do. many people have quit out of fruatration. I cannot afford to. Talking to the managers are useless.
    Talking to the chefs, even worse. They don't want to hear about it, because that means taking $ out of their pocket. On Saturadays or Sundays, we could tip out as much as $200 to $300 total to the chefs for doing absolutely nothing. They can give customers free food or make special sauces to help them get side tips, where as we have to put in the order thru the computer to get anything at all. That usually means we get nothing.
    Corporate pepple don't care as long as their payroll is kept low. Please help.

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  4. CC - contact my office so we can discuss the matter further. Help is just a phone call away.

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  5. I have a similar situation. at the Japanese restaurant I work at, if we leave at the end of the night with 10% of our sales, its a miracle. we have to tip our 7% or our tips to bus boys, and 7% to bartenders with a max of $10 . after all of the tip out has gone to them the rest gets divided between the server and chefs. no matter the sales the chef interacted with or not. at the hibachi tables the tips get split 50/50 but after all the tipping out its more like 60/40 to the chefs. and were I work in the sushi bar its suppose to be 60/40 server but after the tip outs its more like 50/50. for example today I worked at had $41.51 in tips for lunch with a total sales of $231.86. we don't tip out bartenders at lunch cause there isn't one. so the busboy gets $3.32, which is fine. after that's totaled out at 38.19 for my tips, they take "40%" for the sushi chefs. that came out to $15.28 for the chef. this comes out of our tips not the sales of sushi, Which I would think makes more sense. because I had $36.87 in sushi sales. the rest of the food for my total sales was from the kitchen which we don't tip out. so they get almost 50% of the $36 I sold. not to mention they get full blown pay checks and we definitely do not. is it just me or is this ridiculous? I don't know who to contact and this restaurant has been audited before for making us pay for walkouts (which they still do or they threaten to fire us) and for making us tip out the kitchen which we weren't suppose to be doing. we did get paid back for that up to a certain point but there's no way of telling if we got all of that back or not. if anyone can help me with this it would be greatly appreciated.

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