Question

Whom am I required to share my tips with in Massachusetts?

Stephen S. Churchill - Employment & Labor - Super Lawyers

Answered by: Stephen S. Churchill

Fair Work, P.C.
Boston, MA
Phone: 617-612-5521

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Answer

By law, you are only required to share tips with service staff. This includes anyone who directly interacts with customers or provides service to customers. State law does not require you to share with managers, cooks, or other non-service staff at your place of work. 

Massachusetts state law is different from federal law regarding tipping rules and regulations. Our state is much more protective of its employees and service industry workers and has a unique tipping statute. Understanding this statute and its nuances can help employees keep the money they have earned for their work. 

You can be required to share tips with these employees 

The law is very clear on who constitutes a “service” worker. You may be required to share tips with: 

  • Servers
  • Bartenders
  • Food runners
  • “Counter” service staff such as baristas
  • Table bussers 

Even if a non-service coworker or manager is performing any of these duties to help out, they do not have the legal right to ask for a cut of the tips. They are still a non-service employee. 

You do not need to share tips with any of these coworkers 

Non-service workers are considered staff who interact with customers but do not deliver service to them. Service to customers may be part of their job, but it is not their direct role. Often these types of employees make regular wages that are above minimum wage to account for not receiving tips. 

You do not need to share tips with: 

  • Managers or supervisors
  • Floor hosts
  • Kitchen staff such as chefs and line cooks
  • Maître d'hôtel or head hosts
  • Expeditors
  • Security personnel 

Your employer can take a “tip credit” 

Our state laws do allow your employer to take a tip credit. This means they can count your tips and then apply the total toward your minimum wage. This does not mean they take the money from you, but it can mean you will not receive all your minimum wage from your employer. Your workplace can treat your tips as if they paid you a minimum wage, but instead, this money comes from your customers. 

For example, let’s say minimum wage is $11 and you worked 20 hours this week. Your company would owe you $220 pre-tax. However, you received $50 in tips over this work week. Your company would only owe you $170 now because your tips count toward your total wages. 

Counting your tips to understand the tip credit is legal. Your employer should not physically take this money away from you, however. 

Are you part of a tip pool? 

Massachusetts law can require you to pay into a “tip pool.” This means a portion of all your tips for a shift goes into a general fund, and the money is evenly distributed among the service employees who worked during this time. 

The only employees allowed to partake in a tip pool are wait staff, service employees and bartenders. Managers or non-service staff are breaking the law if they try to participate in, or take money from, the tip pool.

Steps to take if you have been forced to share tips illegally 

By law, your manager or employer cannot require you to share tips with non-service employees. They may encourage this behavior under the books, but it is illegal. You have every right to the money you earned in tips — outside of a tip credit or a mandatory tip pool. 

Step 1: Be discrete. Talk to an attorney before you confront your managers or do anything at work. Unfortunately, the minute you speak to your employer about any improper tipping, your job could be on the line. 

Step 2: Call an attorney who handles employment law, and specifically wage and hour laws. It does not matter whether you accepted or refused the demand to share tips. We can help. 

Step 3: It can be helpful to have a general idea of when and where the incident took place and who asked or required you to share your tips. However, you do not need to investigate the situation or gather evidence to prove what happened. You do not need a paper record. 99 percent of the time, the people facing a tipping issue do not have any record of it. 

Step 4: Your attorney will work with you to understand the situation and if there was wrongdoing involved. This is often done over the phone or during in-person meetings. We will dig into the facts and sort out what can be done to help you. 

An attorney is the only one who can answer your questions fairly 

Asking other coworkers, friends or your employers about what tips you are owed can backfire. They can offer misinformation unintentionally, or steer you in the wrong direction intentionally. The only person with an unbiased outlook on the situation and the legal knowledge of Massachusetts tipping laws is a wage and hour law attorney 

You need a team that specializes in recovering tips that have been inappropriately distributed. If you have questions about the people you need to tip out, or you are uncomfortable with the tipping at your workplace, call us. Participating in a free consultation about the situation can help answer any questions you have.

Disclaimer: The answer is intended to be for informational purposes only. It should not be relied on as legal advice, nor construed as a form of attorney-client relationship.

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