Here is another installment to help employees recognize whether they are receiving all of their hard earned tips. Under Massachusetts law, only three classes of employees are eligible to receive and share tips: 1) wait staff; 2) service employees; and 3) service bartenders. Massachusetts’ courts are largely concerned about the actual work preformed by an employee as opposed to the job title given to a worker in determining whether an employee is eligible to receive and share tips.
An employee must affirmatively meet the classification requirements of a “wait staff employee” to be eligible to participate in a tip pool. It is true that managers may not participate in the tip pool, but simply not being classified as a manager is not sufficient to become eligible to participate in a tip pool.
Specifically a “wait staff employee is an employee who serves beverages or prepared food directly to patrons, or who clears patrons’ tables but who has no managerial responsibility.” Mass. Gen. Laws ch. 149, § 152A(a).
The Massachusetts Attorney General’s Advisory on the tips statute provides that:
“Managerial responsibilities can include supervising banquet events, making or influencing employment decisions, scheduling shifts or work hours of employees, supervising employees and assigning servers to their posts.”
“No employer or person shall cause, require or permit any wait staff employee, service employee, or service bartender to participate in a tip pool through which such employee remits any wage, tip or service charge, or any portion thereof, for distribution to any person who is not a wait staff employee, service employee, or service bartender.”
Mass. Gen. Laws ch. 149, § 152A(c).
It is important to remember that wait staff is not required to share their tip money with staff in managerial positions. There are specific responsibilities that staff must not possess to qualify themselves as “wait staff.” If the staff member does not qualify as “wait staff” they are not permitted to share in the tip pool. If you believe there are staff not qualified as wait staff sharing in your tip pool you may not be getting paid all the tips you are entitled to receive.