Waiters can keep the change – but not all of it

It's common in the restaurant industry for servers to share part of their tips with other workers, sometimes voluntarily, but often because they have to.

But many workers have balked at what they describe as unfair tip-sharing policies, and some have sued. Starbucks, Chili's, Outback Steakhouse and Orlando-based Hard Rock Café International are among companies that have faced lawsuits.

Restaurant workers often depend heavily on tips because in many states, employers can take "tip credits" and pay regularly tipped employees less than minimum wage — in Florida, as little as $4.23 per hour.

Restaurant companies "are all trying to reduce their bottom line at the expense of the wait staff," said Robert Wood, an associate legal-studies professor at the University of Central Florida.

At Orlando-based Darden Restaurants, for example, a new policy is requiring Red Lobster and Olive Garden servers to share a percentage of total sales with bartenders and busboys, who are getting their hourly pay lowered.

The new policy has angered many workers — especially experienced bartenders — who in several parts of the country are getting their hourly pay cut to $5 when they had been making double that or higher. Darden says the policy is more fair than a previous system in which individual restaurants had informal tip-sharing arrangements.

Legal experts say that as long as Darden complies with tipping laws in each state, the basic policy would stand up in court because it limits tip-sharing to bartenders and busboys — workers clearly allowed by federal law to share tips.

"As long as all of the people who participate in the pool are in positions where they regularly receive tips, you can require them to share tips, as long as the amount shared is considered reasonable," said David Young, a labor attorney with Fisher & Phillips in Orlando.

Waiters sued Orlando-based Hard Rock Café International in Orange Circuit Court this year and federal court last year alleging they had to share tips with kitchen staffers who made sure food was garnished and prepared properly.

The waiters allege that because Hard Rock allowed kitchen employees to share tips, the company should not be able to pay workers less than minimum wage. Hard Rock said via e-mail the allegations "do not accurately reflect how Hard Rock pays it employees" and that it complies with the law.

Kitchen staffers doing similar work were the focus of a federal lawsuit against Dallas-based Brinker International in which a jury in 2009 awarded 55 Chili's servers $270,000. Martin Shellist, the workers' attorney, said servers were pressured to share tips with kitchen workers, whose pay went down. Brinker is appealing.

An appeals court in California in 2009, meanwhile, reversed a ruling that Starbucks illegally allowed supervisors to share in tip pools, erasing a $106-million judgment against Starbucks. The appeals court said supervisors perform many of the same jobs as baristas, according to news media reports.

Young said restaurants can avoid problems by making sure workers sharing in tips provide a lot of customer service. It's one of many legal requirements a tip-sharing policy must meet.

"It's got to be both legal and in my mind practical," he said. "Otherwise it's not really an advantage to a business."