May 28, 2018
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Who controls the tips? The workers — obviously

By Dick Grotton and Greg Dugal, Special to the BDN

On Feb. 5, the Bangor Daily News included a Sun Journal article, “Who should control the tips.” The article strongly implied that there was an attempt under way to somehow take away service employee tip income through recently filed legislation, LD 207. That implication is simply wrong.

The answer to the question “who should control the tips” is clearly spelled out in both federal and state law. Do we really need it stated twice?

The federal Department of Labor Field Operations Handbook clearly states, “all tips received by a ‘tipped employee’ must be retained by the employee except to the extent that there is a valid pooling arrangement.” In making the same point, Maine law is simply redundant. Clearly, we can’t change federal law, and there was never any intent to change this fundamental fact of law that tips belong to service employees.

The intent of the Maine Restaurant Association and the Maine Innkeepers Association in supporting new legislation is simply to conform Maine and federal laws regarding tip pooling or tip sharing and service charges. We have clear goals: to establish one set of standards that will permit tips to be paid to servers in conformance with federal and state law, to permit the industry-standard practice of “tipping out” other commonly tipped employees, and to provide a clear definition of service charge in the banquet setting in Maine law.

It is paramount that we establish clear definitions in Maine law that also comply with federal law to avoid future legal quandaries similar to those that have plagued our industry during the past three years.

It is highly unfortunate that our effort to solve these issues has caused unnecessary concern among Maine professional service employees, for which we apologize. It surely is not our intent to interfere with their tip income in any way. Quite the contrary, the higher the tips our servers earn, the better quality wait staff we can attract and the better experience our customers enjoy.

It also is most unfortunate that Sen. Brian Langley has been pressed to endure public and private comments regarding his sponsorship of this legislation. His effort was simply to correct a deficiency in Maine law, with no intent to change the service employees’ tip structure at all. He is an outstanding Maine state senator working hard for all his constituents, and he deserves the opportunity to present his bill in committee where all the facts will be heard, not in the press with pure speculation.

What caused the conflict? In 2007, a law was passed in Maine, supported by the Department of Labor, that was intended to clarify the issue of how tips are dispersed to service employees in Maine under certain circumstances. This new law, although well intentioned, created unintended conflict with federal law by providing nodefinition of service charge, made industry standard “tipping out” practices cumbersome at best — and potentially illegal — and left Maine hospitality employers subject to costly litigation over these issues.

LD 207, as amended, is intended to set clear guidelines for Maine hospitality employers so they may abide by all the laws and not be forced to choose between state law, which sets one rule, and federal law, which mandates another.

Dick Grotton is president and CEO of the Maine Restaurant Association. Greg Dugal is executive director of the Maine Innkeepers Association.

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