O P I N I O N
THE SOAPBOX
Stand up. Speak up. It’s your turn.
Earlier this year the NH Senate passed SB416. This bill erases state level laws and protections regarding tip-pooling and tip-sharing and defaults to the federal Fair Labor Standards Act (FSLA) regarding the practices of tip-pooling, where tips are collected into a pool that is shared with all workers, and tip-sharing, where the server may “tip out” or share tips with other front of the house workers who assisted them.
Under current New Hampshire law, tips belong to the worker and tip-pooling and tip-sharing are voluntary. This has created problems, particularly for large venues that include the gratuity as a line item in the bill for weddings, banquets, and other large functions. In these cases the owner or manager distributes the tips to the servers, based on their job function and how many hours they worked. Servers also get the $3.27 an hour tipped wage.
Most people, including me, would say that that seems fair. However, it is not voluntary and by some interpretations is not allowable under current NH law. There is specific language in the FSLA that addresses this. It is definitely something that needs to be fixed, but getting rid of all the NH tip-sharing and tip-pooling laws for all tipped workers seems like throwing out the baby with the bathwater.
During the course of vetting the bill, many unintended consequences of adopting the FSLA came to light. In response, the Labor Committee developed a bipartisan amendment that preserves the ability of the NH Department of Labor to receive complaints and enforce the laws. It also prevents management from using tips from servers and bartenders to supplement wages for dishwashers, cooks, and other back of the house workers.
There is still one critical consequence that remains unaddressed. That is the right of tipped servers to control what happens with their tips. Under current law when you give your waitress or waiter a tip, they own it and they get to decide whether to pool it, tip out the people who helped them out, or keep it.
If SB 416 passes, management could require tip-pooling and could decide how to distribute a server’s tips to other workers. Restaurants do have the option to maintain the status quo and many will do that. But others might take advantage of the new laws. Even under current laws we’ve seen restaurants of all kinds accused of wage theft or worse for not disbursing tips appropriately to workers.
There is no job that is more of a meritocracy than waiting tables. The harder you work and the more you hustle; the more money you make. Most people who do it enjoy their work, but the reason they do it is because they need the money to pay their bills and feed their kids. Management is paying them a $3.27 an hour tipped wage. No one can survive on that.
Most of us believe that when we go out to eat we are paying the restaurant for the food and the overhead. However, our tip is a direct payment to the server for their work. It is a direct transaction between the customer and the person who made sure we got our food and that our coffee cup was full.
The restaurant industry and the practice of tipping servers has changed a lot since the days of leaving a few bucks and change on the table or the counter when you left. Today there are POS systems, tablets, tip jars, and credit cards. It has become more complicated.
Furthermore, the FSLA defines a tipped worker as anyone who makes $30 or more per month in tips. The list includes a lot of workers outside of the restaurant industry like golf caddies, casino dealers, hairdressers in chain salons, people who clean hotel rooms, delivery people, cab drivers, and more. A lot of people could be impacted.
The House Labor and Industrial Services Committee received this bill from the NH Senate late in the game. Many of us feel that we did not have sufficient time to thoroughly consider the ramifications of repealing our state laws and defaulting to the federal FSLA. Personally, I would like to see it referred for Interim Study. I believe we can fix the problems without risking the creation of new ones.
The bill and amendment will be voted on by the NH House of Representatives on May 14. If you have experience as a tipped worker and would like to share your thoughts, I encourage you to contact your State Representative. You can find them here.
State Rep. Kathy Staub lives in Ward 5 and represents Hillsborough District 25.
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