Who Can Be Included in Tip Pools?
Which employees in a restaurant or other hospitality industry in which certain employees are considered “tipped” employees can receive distributions from a tip pool? In addition to those who customarily and regularly receive tips such as servers and bussers, some relatively recent guidance on tip pooling from the United States Department of Labor (DOL) addresses additional employees who also may be included.
Employees Eligible to Receive Tips from Tip Pooling
Under federal law, employees who are considered “tipped” employees, or who are paid a tipped minimum wage with the understanding that a significant portion of their wages are derived from tips, are those who can be included in tip pooling arrangements. In most hospitality industries, the Code of Federal Regulations recognizes servers and bussers — as well as certain other customer-facing employees who “customarily and regularly receive tips” — as those who can be included in tip pools. There is no specific law that states how much or what percentage of the tip pool must be paid based on the employee or the role — this is an issue that can lawfully be mutually agreed upon by the parties involved.
When employees are not considered “tipped” employees for minimum wage purposes, meaning that the employer pays the employees a full required minimum wage, then the employer can include many more employees in a tip pooling arrangement. As the Code of Federal Regulations explains, in these circumstances, a tip pooling arrangement may include “dishwashers, cooks, or other employees in the establishment who are not employed in an occupation in which employees customarily and regularly receive tips.” Supervisors and managers, however, may not receive tips from such tip pools.
DOL Guidance on Tip Pooling
The DOL recently considered whether a front-of-house oyster shucker could be included in a tip pool and determined that they could be.
The significance of this DOL opinion is that it clarified that employees in visible service roles (such that they become an employee who customarily and regularly receives tips) can be included in tip pools, even if they are not a type of employee who exists in most establishments. This is important for any employee whose tips are pooled to ensure their tips are not shared among staff who cannot lawfully receive tips from a tip pool. If this is the case, or if you have not received the proper amount of tips from a tip pool, you could have a wage theft claim.
Contact Our Palm Beach Gardens Wage and Hour Lawyers to Discuss Concerns About Tip Pooling or to File a Wage Theft Claim
If you have questions or concerns about whether you have been unfairly excluded from payment from a tip pool, or you have not received a fair amount from the tip pool for any reason that may include parties ineligible for tip pooling being paid from the collected amount, you should seek legal advice. Depending on the specific details of your case, you could be eligible to file a wage theft claim or another type of wage and hour claim. One of the experienced Palm Beach Gardens wage and hour attorneys at Sconzo Law Office can discuss the details of your case with you and can help you to understand your options. If you are eligible to file a claim, we can assist you from start to finish. Contact our firm today for more information.
Sources:
dol.gov/sites/dolgov/files/WHD/opinion-letters/FLSA/FLSA-2025-03.pdf
ecfr.gov/current/title-29/subtitle-B/chapter-V/subchapter-A/part-531/subpart-D/section-531.54