Minnesota Restaurateurs: Get Compliant with Tip Statutes Before Super Bowl LII

Super Bowl LII at U.S. Bank Stadium presents a great opportunity for Minneapolis restaurateurs to generate significant income from parties hosted before and during the big game. With that opportunity, though, comes the challenge of complying with Minnesota’s unique tip-pooling statute—unlike federal laws and those of other states—and avoiding the potential for greater liability. Restaurants planning Super Bowl parties should prepare now to meet the law’s requirements and avoid litigation after the Super Bowl LII victor is crowned.

What Makes Minnesota Tip-Pooling Laws So Unique

Who Can Participate in the Tip Pool?

Federal

Under federal law and that of most states, a restaurant can require tip-pooling among employees as long as those forced to participate in the pool “customarily and regularly” receive tips. So, for example, since the dishwasher is not getting tips for how clean the plates are, servers cannot be forced to pool their tips with him/her. Also under federal law, employees who “customarily and regularly” receive tips may include, among others, hosts, bartenders, and bussers (and, of course, servers).

Minnesota

Minnesota law, which trumps federal law for Minnesota restaurateurs, is quite different. Whether a restaurant can require employees to participate in a tip pool does not depend on who “customarily and regularly” receives tips, but rather on a distinction between “direct service” employees, who can be required to participate, and “indirect service” employees, who cannot. The controlling regulations define a “direct service employee” as “one who in a given situation performs direct service for a customer.” An “indirect service employee” is a “person who assists a direct service employee,” including “bus people, dishwashers, cooks, or hosts.” Thus, unlike federal law, servers cannot be forced to share their tips with bussers and hosts who exclusively assist servers, but who do not themselves perform direct service.

While mandatory tip-pooling is permissible in Minnesota only for direct service employees, if the pool truly is voluntary and without participation by restaurant management, then anyone—including servers, bussers, hosts, etc.—may join the pool. The challenge, however, is a restaurant’s ability to legally encourage pools that remain sufficiently voluntary to meet this requirement. This is typically where restaurants run afoul.

Who May Receive Event Service Charges?

Federal

Restaurants often charge extra for large parties, events, or banquets. Under federal wage law, those types of mandatory charges are not considered tips. Even if the customer thinks the charge is going to the servers and, as a result, elects not to leave anything extra, the restaurant generally can keep the fee. Restaurants typically choose to give some of the fee to the event workers, but that is not required under federal law.

Minnesota

Again, Minnesota law is quite different. In Minnesota, these sorts of obligatory charges belong to the employees who worked the events unless certain specific requirements are met. An obligatory service charge must be distributed completely to employees if it is possible a customer could “reasonably construe” the charge as being a tip, and there is no “clear and conspicuous notice” that the charge is not a tip. In other words, to turn a service fee into money that can be kept by the restaurant, there must be a “clear and conspicuous notice” that the charge is not a tip so that an average customer would not think it is a tip. Regulations instruct—in great detail—what kind of notice meets this criteria: it should be “clearly printed, stamped, or written in bold type on the menu, placard, the front of the statement of charges, or other printed material given to the customer.” A notice is “clearly” printed when the font size is “at least 18 point (one-fourth inch) on the placard, or 9 point (one-eighth inch) or larger on all other notices.”

Even with that detail, it is unclear whether the notice always must be “given to the customer,” or whether a wall placard is good enough. The best course may be to place a notice on the wall near the restaurant’s entry, in bold 18-point font, and include a similar notice in bold 9-point font on the menu or event form. While no court has yet endorsed specific language, something like the following likely would be sufficient: “An X% service charge will be added to events. Pursuant to Minnesota Statute § 177.23, Subd. 9, this charge is not a gratuity for employee service.”

Tackle These Issues Now!

The biggest challenge for restaurants holding Super Bowl parties arises in the interplay between the tip-pooling and service charge rules. If the obligatory service charge requirements are met, then the restaurant may use the collected service charges however it chooses – including distributing them to the direct and indirect service employees who worked the Super Bowl event. But if customers leave additional tips on top of the service charges, then the tip-pooling rules apply, and those tips must be distributed only to service employees (unless the employees have voluntarily agreed otherwise). Thus, back-of-house staff who will be calculating employee earnings from Super Bowl events should have systems set up in advance to ensure employees are correctly compensated.

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