Can Burger King employees accept tips?

Who owns the tip and how to distribute it

When it comes to tips, emotions boil in many places, be it between the kitchen and service staff or between bosses and employees. We show which regulations are legal.

The paying guest is often not aware of the dramas that are going on around the additional reward for the gastronomic service. Although tipping is more a sign of the goodwill of customers in this country, the staff in the catering industry still includes the tip surcharge firmly in their monthly budget.

The distribution of the tip can then have a correspondingly existential effect on the personal living conditions of the restaurant workers. The fact is: A large part of the employees would not do the strenuous job in the catering trade without the tip incentive. Depending on the operating mode, the monthly salary doubles through the tip surcharge.

The rules for dividing tips in different catering establishments are as different as their culinary offerings: in one establishment the boss distributes it, in the other there is monthly collection, in some there is no tip at all.

To get it straight: the tip belongs to the employees and must not be collected by the owner under any circumstances.

Very different procedures

Regardless of which regulation is made, there is always resentment - on all sides. With veteran service staff there is often the legal opinion that the tip belongs to them alone. Whether you let the rest of the team participate in the surplus from your purse then depends solely on your gracious arbitrariness. The kitchen staff, on the other hand, threatens to boycott them if they do not participate appropriately in the tip. Food runners and counter staff without their own cash register grumble and refuse to allocate positions. The catering operator is in a bind.

Two legal writings must be taken into account for the legal regulations on tips. On the one hand the regulations in the income tax law, on the other hand in the trade regulations.

The LAG Mainz decided in 2010 that the tip belongs to the employee to whom it is directed. The background to this is the definition of "tips" in Section 107 III of the Trade Regulations: "A tip is an amount of money that a third party pays the employee without any legal obligation in addition to a performance owed to the employer."

So one thing is certain: the tip never belongs to the boss. The judge's verdict is used by many service staff as a reason for giving colleagues without cashier authority only an arbitrary share in the tip receipts. However, the interpretation of this supposedly clear judgment is incorrect. The services that guests reward with their tips are always part of an overall package in catering establishments.

Hand over responsibility to service

Food and drinks served to the guest are prepared by different employees. Washing up is also part of the service package that guests pay for when they visit a restaurant. The Gelsenkirchen Labor Court therefore wrote in a judgment in 2014: “(It) ... cannot be accepted that the tip is only due to the person who actually receives it.” So the person who received the tip only receives it as a substitute for the whole Team in the restaurant. However, the courts have so far been silent about the rules on how exactly the money should be divided. Professional qualifications, length of service, number of hours worked per shift - the possibilities are virtually limitless. However, the solidarity among employees usually ends with their own wallet.

Daniel Rabe and his wife have been running highly frequented Veedels restaurants in Cologne for eleven years. With the successful Bagatelle concept, he brings French bistro classics to the plate in tapas portions at unit prices in now three restaurants. Around 140 employees are on his payroll. How does he solve the irritating issue of tips? “Apart from the legal regulations, we as the operator have completely abandoned the controversial topic of tips and handed over responsibility to the service department. In our restaurants, there is the following agreement among the employees: The entire tip is divided among the service staff according to the number of hours worked - regardless of the position that the respective employee held. The kitchen receives - but only with the consent of the service - 2 percent of the turnover. How the fee is distributed among the kitchen staff is in turn incumbent on the chef. Here, too, we no longer interfere at all. "

The trigger for this complete detachment from the topic of tips were the recurring, lively discussions about the distribution of tips. In addition, there is no longer any responsibility for the bonus money. In the past, the safe, in which the tip was kept, was stolen several times. The Rabes had the damage.

Rabe says: "The system in the Bagatelle works so well because we mainly work with student staff in the service." They are often much more attentive and act more flexibly than trained staff, which is also noticed by the guests and accordingly generously reward the service. “On average, between 5 and 10 euros flow into their wallet per employee and hour.” Daniel Rabe is very relieved that he no longer has anything to do with the tip regulation. "Both the distribution and the storage of the tip took a lot of nerves and time."

Farmers have to consider one more point:

If the boss manages the tip income, it is classified as company income and as such must also be taxed. If the operator fails to do this, he is guilty of tax evasion. For employees in the catering industry, however, tip income, to which there is no legal entitlement in Germany, is tax-free. But here, too, there is a stumbling block: If the tip is collected in a pot and distributed by the employer to all employees, it must be taxed.

It's complicated: In order to prevent employers from classifying the additional tip as part of the regular salary and reducing the wage if necessary, the trade regulations define the tip as a voluntary service by the guest to the service staff. Conversely, this also means that the employee cannot sue his employer for tips in the event of absence due to illness or vacation. If a team of employees provides a service for which the guest leaves a voluntary, additional reward, all employees involved are entitled to it. It is therefore important for employers to find an optimal variant of the tip regulation.

The variant “everyone keeps the money they collect for themselves” puts kitchen staff at a disadvantage. A "tip officer" from the ranks of the employees assumes willingness to compromise, but relieves the owner. If the employer specifies the regulation, there is a risk that regulations made in times of staff shortage will quickly be thrown overboard again.

The boss can suggest a joint fund

DEHOGA advises that clarifying discussions be held with new employees before the start of the employment relationship and that the existing tip regulations are communicated. Especially with high staff turnover, new employees often question the existing tip system. A transparent and equal distribution of tips has been proven to ensure a good working atmosphere. From a legal point of view, however, she may not be ordered as boss. In the interests of a good working atmosphere, however, it can be suggested among colleagues that tips be paid into a common cash register and distributed among all employees.

Incidentally, there is no empirical evidence of a connection between service quality and tips. The reason for more tip is not the service quality. The differences are largely explained by the amount of the bill itself. According to various studies, whether one force serves better than another only plays a subordinate role. There are a few tricks for service staff to influence the amount of the tip, but the size of the table group and payment methods with or without a credit card also play a role.

Conclusion of a waitress: “Basically it balances out in the evening, one table pays less, one more. On average, the tip seldom changes. ”One more reason to appeal for solidarity among employees and to ensure that tips are distributed fairly.

Sonja Theile-Ochel