The FLSA regulates tip pool participation by limiting pool participants to employees who are “customarily and regularly tipped” as set forth in DOL guidance and interpreted by the courts. While the role of different positions in the service process (going to the question of whether they are “customarily and regularly” tipped) can be hotly contested, the USDOL and Courts have generally taken the position that a worker confined exclusively to the kitchen performing cooking duties is not a customarily tipped employee. Cf. Etheridge v. Reins Internat. California, Inc., 172 Cal. App. 4th 908, 923 (Cal. App. 2d Dist. 2009)(affirming “chain of service theory” under California law to uphold tip pool participation of dishwashers and kitchen staff). This FLSA concept was recently reiterated by Judge Roy B. Dalton, Jr. of the Middle District of Florida. Rubio v. Fuji Sushi .& Teppani, Inc., 2013 U.S. Dist. LEXIS 8469 (M.D. Fla. Jan. 22, 2013).

Rubio did not concern the tip pool participation of sushi chefs, whom the court correctly identified as being individuals who often have extensive direct customer interaction and should be deemed customarily tipped, citing Ash v. Sambodromo, LLC, 676 F. Supp. 2d 1360, 1371 (2009). Rather, the individuals whose tip pool participation Plaintiff challenged “prepare[d] food in the kitchen, away from customers; [and] whatever rare and unusual interaction the kitchen chefs had with customers was incidental.” Thus, in Judge Dalton's view, the “kitchen chefs did not provide ‘service’ to customers in a way that warranted a share of the gratuity left by customers.” Cf., Reins, supra

Plaintiffs and their attorneys, as well as federal and state administrative agencies, continue to attack employer tip pools under federal and state law as to employees performing bona fide service duties, though employers have had success defeating such claims. However, those employers’ successes may not extend to positions, such as traditional line cooks and dishwashers, where no customer interaction or direct impact on service can possibly be identified, absent broader adoption of the “chain of service” theory articulated in Reins. All employers should regularly review their gratuity practices for numerous considerations ranging from tip credit notice to the positions included in any tip pool and whether such pool is voluntary or mandatory.