Florida/Georgia Personal Injury & Workers Compensation

...d the employees’ relationships with each other. See Tom’s Food, 896 So. 2d at 454; Waddell & Reed, 875 So. 2d at 1157. Even though Prime and Oswald should not interfere with tips that patrons give to employees of the restaurant, see 29 C.F.R. § 531.52 (2009) (requiring a customer’s tipping of a server to be “free of any control by the employer”), they still exercise control over the employee-patron relationship through their management of the premises, the menu, and their employ...

...Only tips actually received by an employee as money belonging to him which he may use as he chooses free of any control by the employer, may be counted in determining whether he is a "tipped employee" within the meaning of the Act and in applying the provisions of section 3(m) which govern wage credits for tips. 29 C.F.R. § 531.52....

...The two dollar fee in this case is not gratuitous, discretionary for the customer, or kept and used by the recipient. Moreover, the alleged agreement to pay 50 cents to the skycaps for every two dollars collected does not constitute a tip sharing agreement. *1316 Relying on 29 C.F.R. § 531.52 and § 531.55(a), the Department of Labor has proclaimed that even service charges in the form of imposed gratuity do not count as tips....

...In 2010, the Ninth Circuit held in Cumbie v. Woody Woo, Inc. that § 203(m) does not apply to an employer who pays the minimum wage. 596 F.3d at 583 . After Cumbie , in 2011, the Department of Labor (“DOL”) promulgated new rules, which included a revision to 29 C.F.R. § 531.52 (the “DOL Regulation”)....

...The employer is prohibited from using an employee’s tips, whether or not it has taken a tip credit, for any reason other than that which is statutorily permitted in section [20]3(m): As a credit against its minimum wage obligations to the employee, or in furtherance of a valid tip pool. 29 C.F.R. § 531.52 ....

...It is to be distinguished from payment of a charge, if any, made for the service. Whether a tip is to be given, and its amount, are matters determined solely by the customer, who has the right to determine who shall be the recipient of the gratuity. 29 C.F.R. § 531.52 ....

...222, 230 (5th Cir.2011) (quoting Dep’t of Labor Field Operations Handbook § 30d04(c) (Dec. 9, 1988), available at http://www.dol.gov/whd/FOH7FOH_Ch30. pdf). Department of Labor regulations address the tip credit and tip pooling in more detail. Title 29 C.F.R. § 531.52 explains that tips “áre the property of the employee whether or not the employer has taken a tip credit” and that an employer “is prohibited from using an employee’s tips, whether or not it has taken a tip credit, for any reason ot...

...commissions on goods or services. The district court called the Employees’ argument that the service charge was actually a tip “erroneous as a matter of law and untenable as a matter of fact.” Citing the definition of a tip set forth in 29 C.F.R. § 531.52, 6 the district court noted that Nusret’s service charge was not paid directly to the Employees, nor did customers have a right to direct who would receive the service charge....

...Only tips actually received by an employee as money belonging to the employee may be counted in determining whether the person is a “tipped employee” within the meaning of the [FLSA] and in applying the provisions of section 3(m)(2)(A) which govern wage credits for tips. 29 C.F.R. § 531.52. USCA11 Case: 20-12422 Date Filed: 03/18/2022 Page: 12 of 21 12 Opinion of the Court 20-12422 a tip, it was properly considered part of the Employees’ “regular rate of pay” so Nusret could lawfully use it to pay employee wages....

...The FLSA defines neither “tip” nor “service charge.” But as noted in Department of Labor (“DOL”) regulations, the critical feature of a “tip” is that “[w]hether a tip is to be given, and its amount, are matters determined solely by the customer.” See 29 C.F.R. § 531.52(a) (emphasis added)....

...offset the restaurant’s minimum and overtime wage obligations. Id. at 1038. The court considered and rejected the employees’ argument that the charges were tips because the manager would sometimes remove them from the bill. Relying only on the definition of “tip” in 29 C.F.R. § 531.52—and not mentioning the other regulations discussed here or “gross receipts”—the court emphasized that “the material issue is not whether customers always paid a twenty-percent automatic gratuity....

...part of the employer’s gross receipts are not tips for the purposes of the Act,” id. (emphasis added). But this section merely provides “examples” of non-tips. It does not purport to define—for purposes of the FLSA—“tips.” By contrast, § 531.52(a) does. See 29 C.F.R. § 531.52(a) (“A tip is ....

...19 Employees have cited no binding authority for reading an “include in gross receipts for tax purposes ” requirement into the FLSA or its accompanying regulations. Such a requirement is absent even from 29 C.F.R. § 531.52(b), which mentions gross receipts. Pointing to no binding authority, the Employees ask this Court to ignore the plain text of the regulations and read an additional recordkeeping requirement into the FLSA’s already extensive and burdensome requirements....

...the charges on the bills of dissatisfied customers (much like a manager might “comp” an entrée). But what the Employees miss is that the relevant question is whether the decision to pay the given sum is “determined solely by the customer.” See 29 C.F.R. § 531.52(a) (emphasis added)....

...2019). Here, the undisputed record evidence shows that Nusret received the service charges and recorded them in its POS system before redistributing them to employees. Thus, the charges “bec[a]me part of [Nusret’s] gross receipts.” See 29 C.F.R. § 531.52(b). 14 To be clear, we give no opinion on whether Nusret complied with federal tax law in its treatment of the service charge on its tax returns....

...�s mandatory 18% service charge was a bona fide service charge and not a tip because it was a “compulsory charge for service,” and the decision to pay it—and the amount to pay—were not “determined solely by the customer.” See 29 C.F.R. §§ 531.52, 531.55. B....

...48 with each other. See Tom’s Food, 896 So. 2d at 454; Waddell & Reed, 875 So. 2d at 1157. Even though Prime and Oswald should not interfere with tips that patrons give to employees of the restaurant, see 29 C.F.R. § 531.52 (2009) (requiring a customer’s tipping of a server to be “free of any control by the employer”), they still exercise control over the employee-patron relationship through their management of the premises, the menu, and their employ...