Orange County Employment Lawyer Blog

A Riverside County Superior Court jury awarded $25 million in punitive damages to the nearly $1 million in compensatory damages they had awarded the previous day to a former Kmart manager for age discrimination. In the case of Harkins v. Kmart, the plaintiff alleged that Kmart's unlawful conduct was part of a sequence of events designed to get him to retire. Plaintiff had provided exceptional service to Kmart for 20 years, and claimed he was being terminated solely due to his age (64). He alleged that in the months before his termination, he was unlawfully demoted and disciplined in veiled attempts to "work on him" to quit or retire. When he did not "retire" or quit, he was fired. This firing, plaintiff alleged, was retaliatory due to his refusal to quit and due to his age.

My Orange County Employment Law Firm was recently retained on a case where age discrimination was the primary claim. In assessing such cases, it is sometimes difficult to distinguish between a company's need to reduce its work force due to budgetary concerns and a company using that reason as a pretext for its true motive, ridding itself of an "old" employee. Factors that tend to sway the scales in one direction or the other tend to be things like whether other job positions were eliminated, if other employees lost their jobs (and their ages in comparison to the rest of the workforce) and if the company intends on hiring (or has hired) new employees to replace or fill the holes left by the dismissed employees.

In California, tips are the sole property of the employee for whom it is left. However, tip-pools that share all the tips with non-supervisory employees is acceptable ONLY if those receiving a share of an employee's tips provided direct service to the customer. As an example, a lawful tip-pool at a restaurant could be for waiters/waitresses, hostesses, and bus boys. However, this pool could not include cooks or dishwashers, as they did not provide any direct service to the patron. Owners, managers, and supervisors can NEVER share in the tip pool.

Employees are entitled to recover all tips unlawfully pooled or taken from them, and also may be entitled to recover penalties. If an employee complains to their employer about an unlawful tip-pooling policy and is in turn treated adversely, the employee may also have a separate claim for retaliation.

Employers cannot require employees to waive their rights to tips. As such, any documents that employees have signed wherein they agreed or consented to sharing a portion of their tips with management or other supervisors, as well as employees who do not provide a direct service to the patron, is invalid.

RELATED LINKS

Division of Labor Standards Enforcement (DLSE)