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Comment by Plasmoid | Hacker News Reader

I once heard a lawyer explain that tipping is legally problematic.

Service quality affects tip amount very little (~1%), but what does affect it is race, age, and gender. The result is that people doing the same job are being paid meaningfully differently. While the policy isn't discriminatory, the effect of it is, which means that it would likely run afoul of EEOC rules.

The lawyer said if anyone brought a pay discrimination case to them based on tipping they would strongly consider taking it to court.

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Don't most places pool tips? So that even the kitchen staff benefits?

That relies on all the staff to actually pool their tips, though. It's one thing for someplace like a coffee shop where there's merely a tip jar, but if someone leaves a $5 on the table at a restaurant, the waiter/waitress could just pocket it.

Some quirks apparently: From the article, in NYC, "One legal quirk is that if the waitress were actually a cook, searing meat in the anonymity of a kitchen, she wouldn’t be allowed in the tip pool. Only staffers who interact directly with customers—servers, busboys, runners—are considered food-service workers." Which is one of the reasons for the discrimination angle: not all places or professions pool.

Of course, unlike wait staff, cooks actually have to be paid minimum wage.

>Service quality affects tip amount very little (~1%), but what does affect it race, age, and gender.

No shit. There isn't much objective meritocracy in work involving human interaction. Even Mythbusters proved bigger breasts gets you bigger tips.

Perhaps I am old-fashioned, but "proved" is a strong word for a two-day experiment of a single waitress with no control of outside variables.

Well yeah, they were an entertainment show, not a research institute but I doubt you'll find anyone refuting their find though.

It's a known fact better looking people get treated better by their fellow clothed apes in all walks of life, including and especially, service industry work.

I am not objecting to the finding or the show, I am objecting to the casual use of "prove" where something has merely been plausibly suggested.

Correct. Things can be disproved by a counterexample, but not proved.

A theory that "tips are always determined only by service quality" is indeed disproved by Myth Busters. But that's not what he said.

Who would the case be against? The employer? So my ugly mug could sue over not earning what other servers did if I got a serving job?

You could potentially sue the employer for creating a discriminatory environment by allowing tipping is what it sounds like. Seems reasonable based on a preponderance of the evidence (civil bar). Not an attorney but interested to hear one’s opinion on the topic.

https://ecommons.cornell.edu/items/84c39daf-0ec4-4eac-a52b-9...

https://www.politico.com/magazine/story/2019/07/17/william-b...

https://ilr.law.uiowa.edu/print/volume-101-issue-4/fifteen-p...

> The lawyer said if anyone brought a pay discrimination case to them based on tipping they would strongly consider taking it to court.

Better be pro-bono. Cause no tipped worker I know could even afford an hour of lawyer time, let along dozens or hundreds of billable hours for defeating tipping.

You all realize that tipped wage is $2.35/hr, which isn't usually enough paid consistently either.

Restaurants and tipped places are THE WORST.

Maybe a union or other worker rights organization could support it.

There might be a more efficient way of obtaining this through a union: strikes until the base salary is not enough.

But in a country and a field where unions and strikes don't seem very common, this is difficult.

>Better be pro-bono.

If it is a good case, a lawyer will take it "on contingency," meaning the lawyer gets paid only if his client wins.

> You all realize that tipped wage is $2.35/hr, which isn't usually enough paid consistently either.

That isn’t true in all states, in California, Oregon, and Washington (and MT, NV, MN, AK) they make at least minimum wage, tips are always on top of that, no tip credits are allowed.

> You all realize that tipped wage is $2.35/hr, which isn't usually enough paid consistently either.

That is the federal tipped wage (which actually seems to be $2.13/hr). It depends which state you live in. Seems like only 15 states use the federal amount [1].

Where I live in Oregon tipped workers get the full minimum wage of $15.45/hr in the Portland metro area. There is also $14.20/hr for the rest of the state, and $13.20/hr for some rural counties. Some other states also require tipped workers to be paid the full minimum wage, but not that many.

1. https://www.dol.gov/agencies/whd/state/minimum-wage/tipped

I've never met a single person take home $2.35/hr on a tip-based service job. Every single one I've known brought home more than normal minimum wage, with many of them doing much better than that. I hate tipping culture as much as the next tipping-service-hater, but there's no reason to bring about irrelevant points.

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