DEAR CARRIE: My niece works at a restaurant that is partly self-serve. People load their plates with uncooked meats and veggies, and a chef then stir-fries their food. She takes care of their soda requests and rings up their orders. A tip jar sits by the register, and people can tip if they choose. The owner of the restaurant keeps all that money and doesn't distribute it. This doesn't seem right. Who should receive the tips? The people who do the actual work? Or the owner? -- Tip Snatcher?
DEAR TIP: Your suspicions are correct. The tips do not belong to the owner. They belong to employees engaged in a job for which they "customarily and regularly" receive tips, said Carmelo Grimaldi, a partner at Meltzer, Lippe, Goldstein & Breitstone in Mineola
Since your niece serves sodas directly to customers, it appears she works in a job where tips are customary, Grimaldi said. Thus, she may have a claim for a portion of the tip jar.
"Both federal and many state laws [including New York] protect tips from being taken by employers, owners and managers," Grimaldi said.
He explained that federal labor laws consider tips the property of employees, and thus, employers cannot legally use them except as a tip credit to apply against their minimum-wage obligation or to distribute to a valid tip pool. In New York, he said, it is unlawful for an employer to demand or accept any part of an employee's tip earnings.
"There is no excuse for the owner to have taken the tips," he said. "It is safe to say the customers at your niece's restaurant -- seeing a tip jar at the checkout register, where presumably your niece rings up the orders -- assume she and her co-workers (not the owner) will receive such tips for their work."
He said that such violations are common and are not limited to restaurants. He noted a recent Newsday article about a manager of a parking lot company who has been criminally charged for allegedly forcing parking valets at Roosevelt Field mall to turn over part of their tips to him each week.
Grimaldi, who represents employers, advises those with tipped employees to seek legal counsel to ensure they are complying with rules regarding tips, tip credits, tip pools, and the tracking and reporting of tips as income.
"To do otherwise," he said, "exposes such employers to potential civil and/or criminal liability."
For more on federal labor laws and tipped employees go to http://1.usa.gov/1gwCIu8
DEAR CARRIE: Our employer is offering buyout packages to workers who are over 65 and have at least 10 years of service. The buyouts include 10 weeks of severance payments. We have no pension plan. I wanted to know if we could collect unemployment benefits after the severance payments end. -- After Severance
DEAR AFTER SEVERANCE: You may even be able to collect unemployment benefits while you are receiving severance, but with two big exceptions: as long as the severance isn't structured like wages that continue until you find another job; and as long as your severance works out to less than the $405 weekly maximum unemployment-benefit payment. (That amount will rise to $420 on Oct. 6.)
On the other hand, if your weekly severance exceeds the current benefits amount, you wouldn't qualify for jobless benefits while receiving payments from your former company.
The latter is the result of a new law that took effect Jan. 1 tightening eligibility requirements for jobless benefits. Once the severance ends, you could qualify for benefits, provided you are still unemployed.
For more on new state rules for unemployment-benefits eligibility go to http://bit.ly/1oIRaDe