Waiter won’t illegally share tips. Bar fires him

A waiter who was fired for not sharing his tips with bussers has won a round at the Minnesota Court of Appeals today.

After seven and a half years on the job, Todd Burt was fired by Bunny’s Bar and Grill in St. Louis Park after he was told by his supervisor to share the tips with people clearing his tables. Burt claimed sharing the tips violated state law.

State law does bar an “employer from requiring an employee to contribute or share a gratuity . . . with the employer or other employees.”

[A]ny gratuity received by an employee or deposited in or about a place of business for personal services rendered by an employee is the sole property of the employee. No employer may require an employee to contribute or share a gratuity received by the employee with the employer or other employees or to contribute any or all of the gratuity to a fund or pool operated for the benefit of the employer or employees.

This section does not prevent an employee from voluntarily sharing gratuities with other employees. The agreement to
share gratuities must be made by the employees without employer coercion or participation. . .

Burt sued the sports bar for back pay in a wrongful discharge but a district court judge threw the case out. The Minnesota Court of Appeals has now reinstated it.

The ownership of the restaurant claimed — and the district court agreed — that there’s nothing in the law to prevent the firing of an employee “who declines to participate in an illegal tip-pooling arrangement.”

Even the typically buttoned-down Court of Appeals seemed to drop its collective three-judge-panel jaw at that logic.

That, it suggested, would be like firing an employee for refusing to take a polygraph test because there’s nothing in the law making such a thing illegal that says you can’t fire an employee for not engaging in an illegal act.

“That an employee who is compelled to work under conditions violating the MFLSA [Minnesota Fair Labor Standards Act] can sue for the amounts not paid by the employer as required by the statute, but if the employee refuses to go along with the illegal working requirement and is fired, the employee is just out of luck,” Judge John Rodenberg summarized in his opinion today. “That position is inconsistent with the plain language of the statute, the supreme court’s consideration of similar language in Nelson, and any common-sense understanding of the legislature’s intention in broadly providing employees a civil remedy for MFLSA violations.”

As for the bussers, the solution seems to be that they be paid a better wage.

  • Erik Petersen

    No link to story?

    I recall Bunny’s as a dump. An oddly popular dump.

  • PaulJ

    When I tip, I assume part goes to the bussers; so how how does a waiter who exactly the tip is for?

  • boB from WA

    In some restaurants, the sharing of tips is not just for bussers but also barkeeps and hosts/hostesses. And you’re right, bussers and the rest of the support staff should be paid better.

    That said, back in the day when I bussed tables, I lived on my tips and banked my hourly pay. I would think that the same holds true today or that tips supplement wages so that expenses can be made.

  • Mike Worcester

    //Even the typically buttoned-down Court of Appeals seemed to drop its collective three-judge-panel jaw at that logic.

    I’m curious how the district court judge found any logic in the argument put forth at trial. I’m envisioning a crafty attorney saying to their clients “You’re totally screwed but let’s try this long shot line of reasoning and see what happens.”

    • Nothing much surprises me in Hennepin County District Courts.

  • Jeff

    Interesting story, the case does bring up some questions that need to be answered. If a company policy is not followed could a person refuse that policy because “it’s the employee’s choice” to contribute, then be fired for not following company policy?

    Odd how union laws run completely opposite to this law…where a non-union member is forced to contribute to an entity they may oppose politically but they are forced to help that organization operate. Sharing tips is an illegal request, forcing employees to pay for a union political machine (against their will) is legal? What sense does that make? You could make the justification that in both cases the union/bussers make the job easier for the employee so they MUST pay for that service…very odd how the law diverges in those very similar situations.

    • rosswilliams

      “Sharing tips is an illegal request, forcing employees to pay for a union political machine (against their will) is legal? What sense does that make?”

      It makes perfect sense. A union voted in by a majority of workers is required to represent all the workers in dealing with the employer. Why wouldn’t all the workers be required to pay the cost? If they don’t like the union’s political positions they can vote for different union leadership or a different union. What they can’t do is freeload, taking the benefits of the union while letting someone else pay the costs.

      BTW – whether employees are required to join the union and pay dues is not required by law. It has to be negotiated with the employer.

      • Jeff

        Following your logic a bit further, all you would have to do is have all the workers vote on tip sharing (owners, bar tenders, bus boys, greeters and maintenance workers); call that vote a union vote and bam that’s both legal and ethical?

        How would you feel if the majority of workers voted to contribute to a political group (a right leaning PAC for example) and made that a requirement of getting a job, sure we can slap a union label on that system, is that okay with you?

        • jon

          1) Management (owners) are generally not part of a union, as it’d be a horrible conflict of interest.
          2) Maintenance workers are generally hired per job, and generally wouldn’t be part of the same union.
          3) Yes, were restaurant staff to unionize, rules could be put in place by the union, employees could be forced to pay union dues, and follow those rules. Or get another job that isn’t union, or vote to remove the union.
          4) I don’t know if union could force tip sharing because of the law stated above, a lawyer for the union would need to review all of that before making that call, it could just as easily end up in court from a union as it does from a restaurant owner.
          I suspect the major issue with the idea of tip sharing is that the server owns that money already, the dues may be taken to fund the union, but they can’t be taken to pay other employees unless that is negotiated with management, and even then it’s not managements money to redistribute…

          • When a union comes into a company, the rules are not “put in place by a union.”

            The only thing a union does is allow for COLLECTIVE bargaining in which employees and employers AGREE on minimum policies that will be put in place.

            The issue here isn’t tip sharing, per se. It’s whether a company can fire someone for NOT breaking the law at their insistence.

          • Jeff

            How exactly are dues not already owned by the employee first??? Why can the majority vote to take away the income of a minority to further a political movement the minority disagrees with? Taking money out of a server’s tips and taking money for “dues” are 2 sides of the same coin, looking at it without the union label it’s the same exact thing.

          • What political movement are we talking about?

            We just voted in a union at my place of employment and, sure, there were people who were dead set against it.

            But a union is more than just how much you’re paid. My priority, for example, was codifying the terms of layoffs. There’s so much more to the employee-employer relationship than a wage.

            That, of course, doesn’t lend itself to the talkradio types, of course. Details and all.

          • Jeff

            Interesting, I wouldn’t have thought that journalists were in unions. I do listen to talk radio but most of the shows I listen to are on MPR and WBUR, I might listen to an hour or so of local newstalk radio but I can’t stand the commercials for too long and I absolutely hate listening to Beck and Hannity…Limbaugh is pretty bad too. Good to see you’re attempting to paint me with a broad brush, but I don’t fit neatly into your categorization. Some of the best talkradio shows are actually podcasts…I enjoy Marketplace, Planet Money, Radiolab, Freakonomics, More Perfect, Invisibilia and 99% Invisible…I recommend them to everyone who cares to talk about “talkradio”.

            Oh, I know unions determine much more than pay…there’s job protection too (hiring and firing rules). Can you imagine how well a restaurant might function if union rules were imposed upon them? They’d be out of business within 6 months to a year. Besides that an employer could simply fire the union workers and hire non-union workers to keep the business afloat.

            I don’t really have a big issue with unions in the private sector, although I do think it makes those businesses less competitive. I look at them sort of like how taxi cabs try impose their will on riders and attempt to exclude (not allowing them at airports or hotels) the up and coming options like Uber and Lyft. I do have a major problem with unions existing in the public sector where they function on tax payer dollars, which they use to donate to political campaigns to put people into office to get more tax payer dollars from others…just a vicious loop.

            I am interested to know more about your union, does it exist only in your own place of employment? Does it have an associated larger union group that participates in the political sphere? What are the layoff rules the union has imposed on the employer? How did the union organize and come into existence? I am interested in learning about how unions function, if I’m coming at this issue as an uniformed person by all means inform me and you might change my mind on the issue.

          • jon

            Yes, they own the money they pay in Dues.

            But the dues don’t go to pay the wages of other employees, they go to pay for the union.

            There is a big difference between paying for goods and services (like the services of a union) and paying for your co-workers labor, that management is in theory already paying them for, and hired them for…

          • Jeff

            Actually the money does to go to pay salaries of the union heads…but it does differ depending on the union, the bigger the union the more likely that your money is going to the salaries of those running the union.

          • jon

            uh huh….

            And is the union head my “co-worker” when he is acting in the capacity of the union head? or is he working for the union?

            Is he hired by the same management that I work for, or is he in the employ of the union itself, and voted in by it’s members?

            If you can’t see that paying for a service is different than paying your co-workers/peers then I’d advise not buying a burger for lunch today lest the grill cook become your co-worker as the money you paid helps pay their wage/salary.

          • Jeff

            You missed a key word there “forced” to pay for a service.

          • jon

            Yes like you are FORCED to pay for that burger when you receive it.
            I suppose you could take the burger, and not pay for it… but that’d be stealing…

            If you are in a union shop and you don’t want to pay dues you have options that were covered above… if you want to re-hash those, you can do it without me.

          • Jeff

            No, show me the public teaching job where I don’t have to join a union.

          • DavidG

            You don’t have to join the teacher’s union to be a teacher in a public school. You do receive the benefits

            that the union negotiates for you regardless of your union membership status, so you do pay your share of the costs the union incurred bargaining for them.

            Any political expenses the union may spend are paid for solely by those who opt to join.

            Don’t want to pay for the costs of collective bargaining you benefit from? Lobby lawmakers to remove the requirement that unions represent non-members.

        • rosswilliams

          Actually, that doesn’t follow my logic. You seem to have missed it. The union provides benefits to all workers, any political activities are a very minor part of that.

  • Jeff

    One final thing, what kind of a settlement does the fired employee expect to get? I’m trying to figure out how much value could a fired employee receive for losing a serving job…a few hundred dollars? A few thousand? Wouldn’t legal fees and all the time spent fighting in court amount to much more than the employee could expect? I understand the principle of the lawsuit, it might answer a question and I applaud the employee for doing it but I keep coming back to the idea of, “is it worth it”?

    • Erik Petersen

      I’m just saying cuz sports bars don’t have a lot of male servers…. Guy had to have been a bartender.

      I dunno, maybe with his tips he was making $40k. Can ask for that or something in that ballpark for damages. The business will feel that when they pay it out.

      • Jeff

        Sure, but if he just went out got another serving/bar tending job instead did he lose $40k or just the month or two it took to find a new job and the loss of income during that time. There could be other damages for the business I suppose. But the legal fees for even just maybe getting $40k seems like it might not be worth it. Good for the server though, he should keep at it and hopefully his legal fees are covered.