Tipping Case Could Go Before SCOTUS

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The Supreme Court of the United States might hear a case that could set some important precedents concerning the tipping of restaurant employees. Tipping has a long and tumultuous history, and it is often used to justify lower minimum wages for waitstaff and other restaurant employees who are customarily given tips by customers. But there are many restaurants that force waitstaff to pool their tips so that those tips can be shared among everyone, sometimes including kitchen staff and others who are paid a higher minimum wage.

The National Restaurant Association, which has lobbied hard against increasing the minimum wage for fast food workers, has petitioned the Supreme Court to review Cumbie v. Woody Woo Inc., a trial about whether or not a restaurant (Woody Woo) could force waitstaff to pool their tips and then share those tips with kitchen staff. In this case, the restaurant was forced to pay waitstaff the same minimum wage as everyone else in order to continue pooling tips and distributing them among all employees.

The Fair Labor Standards Act says that tips belong to the employees who receive them, and that tip pooling can only be used in certain circumstance, none of which applied to Woody Woo.

In its first hearing, the case was dismissed. On initial appeal, the court found in favor of the restaurant. However, in February 2016, the Ninth Circuit Court overturned the ruling, officially referring to the Department of Labor’s 2011 version of its tipping regulation, in which it is illegal to pool tips with non-tipped employees.

The crux of the argument that the National Restaurant Association wants to take to the Supreme Court is that the Department of Labor has not been given any statutory authority by the Fair Labor Standards Act to make rules or amendments to the law. Other cases related to the FLSA have also revolved around what powers the DOL does or does not have.

By taking the Cumbie case to the Supreme Court, the court will have reason to reassess those laws and pertinent cases and make a final call. This could in theory overturn judgments in dozens of other past cases.