Tip pooling the wrong way
LeeHarvey is correct.
"tip pooling" is when a restaurant requires tipped employees to contribute a portion of their tips into a pool which is then split among other employees is legal under the federal Fair Labor Standards Act's tip-credit provisions. The tip-credit provisions has several limitations that will render the tip pool invalid if they are violated; exposing the employer to minimum wage violations.
The employer can not keep tips intended for the servers. It's wrong for several reasons:
1) Stay out of the Pool! Tipped employees such as waiters cannot be required to share their tips with workers who do not customarily and regularly receive tips. The employer do not "customarily and regularly" receive tips and their participation in tip-pooling arrangements are a clear violation of overtime laws;
2) no tip credit the tip credit provisions basically provides that if an employee's tips combined with the employer's direct wages of at least $2.13 an hour do not equal the minimum hourly wage of $5.85 per hour effective July 24, 2007 (previously $5.15); $6.55 per hour effective July 24, 2008; and $7.25 per hour effective July 24, 2009; the employer must make up the difference.
By taking tips from wait staff so that the hourly wage drops below minimum wage, the employer forfeits forfeit their tip credit and are required to pay the waiters minimum wage for each and every hour that that the waiters worked over the last two and possibly three years. In addition, the waiters are entitled to keep the tips they may or should have received.
3) Plastic accepted...most of the time Credit Card charges by the employer was discussed in this thread. Where tips are charged on a credit card and the employer must pay the credit card company a percentage on each sale, then the employer may pay the employee the tip, less that percentage. This charge on the tip may not reduce the employee's wage below the required minimum wage. [see point 2)]
The amount due the employee must be paid no later than the regular pay day and may not be held while the employer is awaiting reimbursement from the credit card company.
Cheers!