Can tips be pooled? The answer, as it so often is with legal matters, is 'it depends.' With whom are tips being shared? The wait staff can share tips with busboys and busgirls. But they cannot do so with employees who don't actually serve customers, such as dishwashers, prep cooks, chefs, or anyone else in the kitchen. Who says? The regulations are part of the Fair Labor Standards Act--the U.S.'s wage and hour law. In addition to actually serving customers, employees who receive tips, either directly or through a pool, cannot be what Cohen refers to as 'agents' of the employer. An agent is a manager, who can be identified by any or all of the following duties, called 'economic realities' in the law: They can hire and fire, control work schedules or conditions, determine pay rates and methods, or keep employment records.

Starbucks was found in violation. The customer service employees called 'baristas' in Starbucks cafes were required to share tips with shift supervisors. The employer didn't consider those supervisors to be managers, since the only one of the economic realities they handled was controlling servers' schedules. But that was enough for the California court where a class-action suit by the baristas was heard: Starbucks was ordered to pay servers $100 million in tips they were forced to share with supervisors.

Also in recent days, Ruth's Chris Steak House has been sued for requiring its wait staff to spend substantial amounts of time performing tasks that don't generate tips. And Wynn Las Vegas has been accused of forcing casino dealers to share their tips with floor supervisors. Finally, in a more complex situation, a Massachusetts jury sided with nine American Airlines skycaps who argued that the employer's new $2 per bag fee for curbside check-in dramatically reduced their tips. A similar suit is pending against US Airways Group. In both cases, the skycaps contend that customers believe the new fees will be given to the skycaps, which wasn't happening, but it will happen now.

What about service charges? Similar to airlines' bag fees, many restaurants add a gratuity to some meal checks, such as for parties of six or more. If an employer collects such a service charge, it need not be shared with other employees. But a relatively new San Diego restaurant, according to The New York Times, has banned tipping. The Linkery adds an 18 percent charge to every check, which, like other restaurant revenue, is then shared with the staff.

Here Are ore Tips on Tipping

Why aren't restaurants likely to follow the Linkery's practice? The New York Times reported that restaurateurs say customers want to tip, because they think it encourages better service. Eatery managers also say that tipped employees often or usually make more money than those paid wages only--so they should share. But the real reason, Cohen believes, that restaurants want to continue allowing tips is that they can pay their customer service employees smaller wages. It works this way:

• All employees must be paid at least minimum wage--except, in most states, employees who receive tips. If tips average at least $30 a month (not much), the employer may take a "tip credit" and pay a much lower hourly rate, with servers making up the difference in tips. Under federal law, for example, servers can be paid as little as $2.13/hour, as long as their estimated tips bring them up to the current federal minimum wage--$6 .55/hr. since July 24, 2008.
• Some states raise the bar on the "customary and regular" tip qualification above the $30 monthly standard, so check your specific state statutes.
• Also check your state's tipping laws, because some require higher hourly wages. For example, the rate for tipped employees in Massachusetts is $2.63; it's $2.83 in Pennsylvania; and Florida employers must pay $3.77. And, California and some other states don't allow the tip credit at all.
• If customers pay by credit card, including the tip, and the employer must pay a processing fee to collect the charge, it may deduct that fee--but only that fee--from the employee's tip.
• Remember that judges and juries may see employees who perform only one of the four 'economic realities' under FLSA as managers--so tips cannot be shared with them, even if they often help to serve customers.
• Remember, too, says Cohen, that most lawsuits in this area are class actions, with plaintiffs' attorneys earning between 25 and 40 percent of damage judgments--a big incentive to sue.
• And watch out for laws in some states, like Massachusetts, that have mandated triple damages for violations of wage and hour laws.