Tuesday, March 3, 2009
Page 1
Court of Appeal Rules Bartenders Can Join Tip Pools
By STEVEN M. ELLIS, Staff Writer
This district’s Court of Appeal yesterday rejected a former cocktail server’s challenge to the inclusion of bartenders in tip pools.
Rejecting an argument that state law limits tip pools to those who directly service tables, Div. Eight affirmed an order dismissing the man’s putative class action against restaurant and video arcade chain Dave & Buster’s.
Aaron Budrow filed suit after working in one of the restaurant’s California locations in 2002, alleging its tipping policy requiring servers to contribute one percent of gross sales to bartenders and other employees violated Labor Code Sec. 351.
The section prohibits employers from taking any part of a gratuity left by a patron for an employee, and declares gratuities the sole property of “the employee or employees” to whom they are given.
Budrow conceded that Dave & Buster’s did not permit members of management to participate in or take from tip pools, but he argued the law and the Court of Appeal’s interpretation in Leighton v. Old Heidelberg, Ltd. (1990) 219 Cal.App.3d 1062 distinguished between “direct” and “indirect” table service.
Contending that bartenders did not serve patrons in the restaurant’s dining area, he reasoned they were therefore barred from participating in tip pools.
However, Los Angeles Superior Court Judge Elihu M. Berle found Dave & Buster’s presented evidence it did not violate the statute and granted the restaurant’s motion for summary judgment.
On appeal, Budrow renewed his argument that both the statute and the Heidelberg opinion imposed a “direct table service requirement,” but Justice Madeleine Flier flatly rejected the first theory, writing that the statute’s plain language created only two conditions: that the person be an employee, and one for whom the tip was “paid, given or left.”
She then opined that Budrow’s reliance on language in Heidelberg that tips are intended for all employees who “directly serve the table of a patron” to establish a direct service rule was misplaced, given that Heidelberg court never defined what constitutes “direct” as opposed to “indirect” service.
Pointing out that the references in the opinion to direct table service were made without any attempt to fashion a rule limiting tip pools to servers and busboys, Flier similarly noted the Heidelberg court did not address who is to be excluded from a tip pool, or provide any criteria or standards for limiting who can be included.
“Tip pools exist to minimize friction between employees and to enable the employer to manage the potential confusion about gratuities in a way that is fair to the employees…,” she wrote. “[I]igniting an artificial controversy over ‘direct’ versus ‘indirect’ table service serves no useful purpose when the statutory touchstone is whether the gratuity has been ‘paid, given to, or left for’ the employee or employees.
“It is in the nature of a tip pool that it is based on the general experience of each particular establishment, that it is only broadly predictive of the reasons for and the patterns of tipping in that particular restaurant and that, in the final analysis, this is the best that anyone can do. It is simply not possible to devise a system that works with mathematical precision and solomonic justice in each one of the millions of transactions that take place every day.”
Flier also declined to consider an argument by the California Restaurant Association and the California Hotel & Lodging Association, which joined Dave & Buster’s as amici curiae, that the Labor Code impliedly mandated that only the Department of Industrial Relations, and not private parties, could enforce Sec. 351.
Justice Laurence D. Rubin and Ventura Superior Court Judge Vincent J. O’Neill Jr., sitting by assignment, joined Flier in her opinion.
The case is Budrow v. Dave & Buster’s of California, Inc., B205026.
Copyright 2009, Metropolitan News Company