Tips on tips

Tips on tips

By MICHELE KLEIN
January 4, 2010 20:40
waitress 248.88

waitress 248.88. (photo credit: Ariel Jerozolimksi)

 
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How many waiters does it take to change a light bulb? None - a burned out bulb can't catch a waiter's eye. How many waitresses does it take to change the light bulb? Three - two will hang around complaining, while the third goes to get the manager. And how many personnel in the local hamburger joint does it take to change the dud? Two - one to change it and one to put some French fries with it. One more question: How many people share the tip that you leave with your bill after your refreshment in a restaurant, café or pub where service is specifically not included? The answer to this question is not obvious. The tipping of a servant or other person of inferior social standing, in anticipation of or reward for good service, was commonplace among the 18th- and 19th-century upper classes in Britain. But the origin of the word "tip," meaning to give to or share with, goes back to 1610 when it was used by petty criminals. A story in the New York Tribune in 1895 told that the acronym TIPS, "to insure prompt service," allegedly derived from a sign in a London pub. The custom today, however, usually refers to a sum of money that a customer presents to a worker in recognition of a service already performed. We may tip our taxi driver, hairdresser's assistant or gas station assistant with a coin or two for help rendered, and assume that the person we are tipping receives our tip as an extra gratuity, in addition to and not as a basic wage. However, diners at restaurants in Israel customarily leave 10 percent to 15% of the total bill, much more than a few coins, for the serving staff. Many diners believe that they leave their tip as an extra perk for the staff, which the waiters and waitresses pocket in addition to their monthly pay, but in fact diners are more commonly assisting the restaurant owner to pay basic wages. Thus our "tip" often turns into wages, and the staff may or may not receive any extra gratuity. Moreover, some restaurants charge customers an extra few shekels, without prior warning, to cover the expense of having a security guard at the gate. This is illegal. DINA FINISHED her army service last January and chose to waitress for a few months in the Tel Aviv area. She soon found a job. The first five days, her employer declared, she would be learning the job and would receive no pay. In addition, she would not be entitled to tips on these days, as she would not serve customers. So, naively, she cleared up the dirty plates and wiped tables all week for free. Then she served customers for a couple more weeks but was soon fired, ostensibly for serving salad dressing next to the salad, as a client had requested, and not on top of the salad as was usual. Perhaps every month her ex-boss found another naïve girl who was willing to work for free for five days. However, the law entitles workers to a minimum wage for clearing away dishes and wiping tables, since this labor renders a service to their employer. Dina was not doing a skilled job that required apprenticeship; she merely had to learn the customs of the restaurant, which she should have done at the employer's expense, not gratis. Dina soon found another job in a popular restaurant. This time she earned the minimum wage for her five hours of "training." After that, her employer, like most others in the center of the country, paid her a basic wage of NIS 25 per hour, which he took from the tips she earned. She received her wages, minus national and health insurance deductions the following month. However after each day's work, she was allowed to take home the tips that were left over, after the boss had deducted her basic wage. Over one month, she managed to take home on average an extra NIS 5 per hour, bringing her average wage to NIS 30 per hour. In a pricier restaurant with a large turnover, a waitress can earn more than that. On one particularly busy day, when the restaurant was short-staffed, Dina made a mistake and keyed the wrong code number for a client's order into the computer. The kitchen produced a plate of chicken livers instead of chicken wings, and her employer demanded that she pay cash immediately for her mistake, the NIS 40 list price for chicken livers. She had no choice; anyone who makes an error has to pay for it at the consumer's price, even if it happens when working under stress because the employer hasn't taken on enough staff for the shift. She paid him for her mistake, on the spot. Later that week, she decided to look for another job - any job but waitressing. MANY YOUNG people take a waitressing job without demanding their rights from their employer because they don't know their rights or because they want the job and quick cash. Two waitresses working in a family-owned restaurant admitted that they take home in cash all the tips they earn on each shift, and their employers do not give them any wages at all. Their tips add up to a reasonable sum and the job is convenient for a few months. There is no paperwork involved. When tips go into wages without accounting records, the cash becomes "black money," undeclared income. A number of gutsy waitresses have sued their employers for proper wages in recent years, not always successfully. Einat Cohen waitressed for two years, from 1993 to 1995, and earned only the tips she had pocketed. Some days this was less than the minimum wage. She sued her employers to pay her the minimum wage for the two years that she had worked, even though she had received tips. Her employers disputed the case, which was resolved in the National Labor Court only years later, in 2003, when she finally won her basic wage, with added interest and cost-of-living adjustments. The following year, the Tel Aviv Regional Labor Court rejected the claim of waitress Julia Darmon for a basic wage from her employers, since her earnings from tips satisfied the minimum wage law. In a third case, Tamar Eckstein sued her employers for social benefits as well as a basic wage after working for six years in a coffee shop. She won the basic wage for her years of waitressing, just as Einat Cohen had, even though she had pocketed tips from customers. She also won payment for travel, holiday and rest, which she was due by law. However she didn't receive extra pay for her work on Shabbat and other holidays, since she couldn't prove that she had worked on these days. Had she kept a proper record of the days and hours she had worked, she would have been entitled to extra pay for working on Shabbat and holidays, overtime and late at night. A decisive verdict in the National Labor Court, known as "the waitress ruling," was handed down on June 1, 2005. In this case, the waitress had sued her employers for a minimum wage, regardless of the tips she earned, after working for only four months 10 years earlier. Court President Steve Adler took into consideration all the previous wage disputes involving waitresses and concluded that a tip that goes straight to the waitress (or waiter, of course, but the feminine term is used here for convenience), without going through the employer's till, cannot be considered a working wage, since it is hard to oversee that this sum reaches the level of a minimum wage and that the beneficiary gains social benefits or is taxed on income. Such a tip is an unsupervised gift made by a client to the waitress, a token of goodwill, and is not intended as a service charge that the employer takes to pay her wage. Moreover, since the payment of a tip is a custom and is not required by law, tips cannot be relied upon to make up for a minimum wage. However, Adler's ruling also stated that if the employer collects all the tips, registers them and keeps accounts, they may be used to pay the waitress her basic wage. But in this case there must be an agreement between the waitress and the employer that the tips she collects will be used in this way. Also, the agreement must detail how the tips will be recorded, handled, distributed and on what day. Moreover, the waitress's wage, from both sources (tips and/or employer's remuneration), must not amount to less than the minimum wage. And the employer remains responsible to ensure that his staff receives social benefits and that tax is paid where applicable. If all these conditions are met and the accounting is transparently clear, the tips can be used to pay a waitress's wages. If the tips fall short of the minimum wage, the employer has to make up the missing sum so that the waitress receives her due. However, wage disputes over tipping did not end with Adler's verdict. Kav Le'Oved provides the clearest information for waiters and waitresses on all the issues at stake. The Industry, Trade and Labor Ministry outlines the laws regarding minimum pay and social benefits and explains how to lodge a complaint. THERE HAVE been several initiatives in the Knesset to pass a law to normalize the tipping business, so far without success. But who wants this proposal to become law? The Web site of the Association of Restaurants, Bars and Coffee Houses in Israel says that it has set up "a committee to study the proposals to change the law regarding tipping and to present alternatives," apparently because it is not happy with the proposals for change. And as many serving staff in popular restaurants can make considerably more than the minimum wage in immediate nonaccountable cash from happy consumers, these workers are not interested in helping to pass such a law. One nonprofit organization, Bema'aglei Tzedek, tackles the issue by awarding a social certificate, tav hevrati, "a seal of approval granted free of charge to restaurants and other businesses that respect the legally mandated rights of their employees and are accessible to people with disabilities." It has awarded certificates to businesses, mainly in Jerusalem, Tel Aviv, Beersheba and some kibbutzim. It encourages the public to ask questions about wages and access for customers with disabilities, to raise staff awareness. Tipping is not a source of revenue for staff wages at self-service cafeterias, such as the Aroma café franchises that have won the tav hevrati. Here both the consumers and the serving staff know that the money they exchange is properly accounted. As tipping has lost its personal touch, is not mandated by law and is easily abused, it is surely time for change. Eateries, pubs and cafés that are not self-service could standardize the service charge, payable to the employer in the total bill, not as extra cash, as at gas stations. If the Association of Restaurants, Bars, and Coffee Houses in Israel and all the waiters and waitresses stand by, it is the turn of the consumers to act. How many consumers does it take to change the light bulb? It depends on how many demand the change.

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