(NY) Barista Sues Over Tip Sharing

[Omaha Steve]

Source: New York Times

By Steven Greenhouse

Speaking of Starbucks, now comes another big, embarrassing dispute for the coffee chain. A former barista filed a lawsuit on Thursday in United States District Court in Manhattan, accusing Starbucks of cheating thousands of baristas in New York State by giving a share of their tips to shift supervisors.

Lawyers for the barista, Jeana Barenboim, of Brooklyn, point to a state law that says no employer or agent of an employer can accept, directly or indirectly, part of an employee’s tips.

The lawsuit was inspired by a ruling two weeks ago in which a state judge in San Diego awarded $105 million to baristas throughout California, finding that the company had improperly allowed shift supervisors to share in the tip pool.

At the more than 7,000 Starbucks coffee shops across the United States, the baristas leave out a tip jar. The workers pool the money each week, then the shift supervisors and baristas typically divide that money based on how many hours each employee worked.


Read more: http://cityroom.blogs.nytimes.com/2008/04/03/manhattan-barista-sues-over-tip-sharing/

[mainegreen]

1. Not to be nitpicky but

"no employer or agent of an employer can accept, directly or indirectly, part of an employee’s tips"

Doesn't that in the strictest sense mean no one can accept tips?
Isn't any employee an agent of the company when dealing with the customers, who tip them?
:P

Yeah, I know, legalese aint english and laws aren't logical.

[salib]

2. I think it is quite clear

As an employee, not a supervisor, I would not be an "agent of" my employer. As soon as I am put in the position of supervisor, I am then enforcing policies of the employer upon other employees. That is a distinct role. It is also an incredibly unequal position to be in when it comes to divvying up the tips.

Also, as a tipper at Starbuck's, I find it disingenuous of them to put out a tip jar out with the barristas, then split it up in the back room.

[Hannah Bell]

5. Plus, supervisory personnel are typically exempt.

No O/T, no other workers protections.

Starbucks wants to get a break on those regs, & make up the difference to its supervisors from the non-exempt workers' tip jar.

[Xithras]

7. This was discussed in another thread. Starbucks "supervisors" aren't exempt.

They're typically just baristas with keys to the front door and a little training to handle customer complaints, and they make about 50 cents an hour more in exchange for a handful of extra duties. Starbucks typically have an entirely different classification for "Managers", who ARE exempt and actually handle scheduling and disciplinary actions. They don't get a cut of the tips.

On edit: as I mentioned in the other thread, my wifes cousin is a barista. Last I heard, there's also some discussion about just doing away with the word "supervisor", in favor of just calling them Senior Baristas. Nothing else about the job will change, but it should be enough to get them around the law (which IMO probably shouldn't cover them anyway...it's not a management position).

[happyslug]

8. Why not the old fashion word "foreman"???

For the simple reason, Foremen have been ruled to be MANAGEMENT since before WWII, in fact as part of the 1947 Taft-Hartley Act, Foremen were FORBIDDEN to from any type of union for themselves. The name is NOT important, the issue is do they have ANY supervisory powers? If NONE (and I mean NONE) then they are NOT management, but if they just tell the other employees what to do, and the other employees MUST listen to them, even if a third person makes any decision as to being terminated, that role is still management.

I give a military example, even a Corporal is part of the Command Structure of the Military, this he or she is a Manager. I suspect these "Supervisors" have no more power than a Corporal, but that is enough to be part of Management.

This can be seen in 29 USC § 152 (11), Definitions:
(11) The term “supervisor” means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.

Notice the term "responsibly to direct them" and the connector "or". Thus if anyone does ANY of the above, that person is a supervisor under the National Labor Relations Act. Thus if all the people do is Direct other employees, they are Supervisors.

For 29 USC § 152:
http://www4.law.cornell.edu/uscode/html/uscode29/usc_sec_29_00000152----000-.html

For the rest of the National Labor Relations Act (As amended) see:
http://www4.law.cornell.edu/uscode/html/uscode29/usc_sup_01_29_10_7_20_II.html

[Codedonkey]

9. Hmmm...

So when a senior member is in charge of a person, that senior member is considered management? So that means only the lowest position is considered a non-manager?? If that's what you're saying, then I don't think that's correct... I used to be in charge of a small team of five to six people are a previous job.... I was not a manager, but just a team leader. I would report to the engineers who would in turn report to the project managers... I did everything the rest of the team members did, but I would also have some additional responsibilities... This seems to be pretty similar to what the shift-supervisors do at starbucks...

[happyslug]

10. The simple answer is yes, you were a manger

Remember do NOT get hung up over the NAME of a position, You can be the "Executive Vice President in Charge of Office Environmental Engineering", but if all you do is clean the office, you are still nothing but a janitor. Thus you being in charge of a small group of people, is clearly the same job a Foreman would have done in the past. The names of "Foreman" and "Team Leader" do NOT determine if you are in management, what does is the additional duties of directing others, that makes you management as defined under the National Labor Relations Act.

[Omaha Steve]

11. Foremen depends on several things

At larger companies and government offices, foremen and all managers are allowed an association. This is not to be confused with a union, but works for the most part the same. Varies from state to state and company to company.

[Tempest]

4. You can't be an agent and an employee in the strict sense

By legal definition an agent acts on behalf of the employer, an employee act on direction of the employer.

[blayne]

3. Starbucks is going to ignore the California ruling,

so this should continue to get media attention.

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=102x3246931

[blackspade]

6. It has been my experience that

The tip jar was typically divided after each shift at the restaurant that I work and managed.
As a manager I typically worked both counter and food as part of a two person shift and me and the other employee would generally divide the tips between us after the lunch/dinner rush.
There was no dividing things out at the end of the week for us, you walked with cash in hand at the end of each shift.
I never heard complaint one about sharing the proceeds of our labor and never expressed any before I was a manager.
As far as I was concerned we all needed the extra cash considering that I as the highest paid only made 20,000 a year with no benefits and 60+ hours per week.

I understand that Starbucks may be a bit different, but if the manager/shift supervisor is one of the folks generating good tips, I see no issue with tip sharing at the end of a shift. The equal distribution at the end of the week based on hours is the crap part of all of this in my opinion.