Published on Friday, March 8, 2002 in the Boston Globe
Waiters Say Management Takes Big Slices of Tips
by Douglas Belkin
Hundreds of waiters from some of Boston's toniest restaurants say the eateries have found a way to make more money: They're taking the waitstaff's tips.
In a lawsuit filed yesterday in Suffolk Superior Court, five former Locke-Ober servers say the restaurant required them to give a large portion of their tips to management. When they complained, the suit alleges, they were fired.
A similar lawsuit against Morton's is expected to be filed this spring by 15 former servers, and suits already have been filed against L'Espalier and The Bay Tower Room's banquet facility.
''It's the industry's dirty little secret,'' said Samantha Smith, who is among the plaintiffs in the suit against Locke-Ober, which is near Downtown Crossing. ''People think they are leaving money for their server and we're not seeing half of it.''
The waiters allege that the restaurants are breaking state labor laws by ''skimming'' from their tips. At the end of the night, tips left in cash and on credit cards are pooled, with the money divided among servers, bartenders, busboys, food runners - and some managers, such as maitre d's and floor managers, whose cut can run as high as 25 percent, according to a dozen area servers.
An executive for Morton's this week denied that his restaurant forces waiters to share tips with managers.
''All tipping and tip sharing, if any, is fully voluntary,'' said Thomas Baldwin, an executive vice president of the Morton's Restaurant Group.
Locke-Ober executives declined to comment this week and L'Espalier, of the Back Bay, did not return several phone calls. The Bay Tower Room, which is involved in settlement negotiations with about 120 servers, said it simply interprets the state statute differently from the way its employees do.
Peter Christie, the president of the Massachusetts Restaurant Association, agreed the disputes are a question of interpretation, not malice or theft.
''You can't be taking money to pay the chefs out back,'' Christie said. ''But there are gray areas about who is part of the waitstaff. We would never try to protect people who are knowingly trying to break the law, but we live in a litigious society. These are probably just disgruntled former employees.''
Sue Anne Foti, who has been a waitress for 25 years, worked at Morton's, the Chicago steakhouse on Boylston Street, for two years before she was fired in November.
''They forced us to pay the management's salary,'' she said. ''I'm a single mother and I've got two kids. They were taking food out of my kids' mouths.''
Skimming tips allows restaurant owners to pay managers less out of their own pockets, because the tips make up the difference, said Dan Field, the head of the fair labor and business practices division of the attorney general's office.
George Peterson, a former waiter and manager who worked at Morton's for a decade, said his $22,000-a-year assistant manager salary more than doubled after receiving his cut of the tips.
In January of last year, when complaints began to trickle in to the attorney general's office about the alleged skimming, Morton's president and vice president met with the staff, several former servers said. The executives told them that ''tipping out'' would no longer be mandatory. They wouldn't explain why the policy had changed.
Still, the practice continued, waiters said. Even the expediter, who was paid $10 an hour to put parsley and watercress on the plates, had to be tipped out $5 a night by each waiter, said Melanie Resler, a Morton's employee of 13 years who quit a few months ago and declined to give her married name.
At Legal Seafood, by comparison, waiters and waitresses typically tip out the bartender 5 percent and the busboy 15 percent and leave with 80 percent of their gratu ities, said Andrew Bluestein, a manager at the Copley location. ''We would never take a cut of their tips,'' Bluestein said. ''It's their money. Management has a salary.''
Tip skimming at Boston area restaurants is widespread but rarely reported, according to industry workers. Janice Loux, president of the Boston Hotel and Restaurant Workers Union, Local 26, said all union contracts have antikickback clauses in the contracts but nonunionized workers typically have neither contracts nor protection.
The attorney general's office, which receives 80,000 calls a year about wage violations, said many of them are from restaurant workers. Despite the scope of the problem, investigations are rare because the language of the law makes prosecution difficult and time-consuming. Civil lawsuits filed by waiters are unusual because few know the law, Field said. The attorney general's office is backing legislation that would make it easier to penalize offending restaurants.
And the reality, say food servers - who earn as little as $2.63 an hour before tips - is that those who do speak up fear recrimination ranging from lousy shifts to blackballing.
Resler estimates that while at Morton's, she gave management $130,000.
And that's pocket change to what State Street's The Bay Tower Room could be paying if it loses its court case, which was certified as a class action suit in January. In that suit, plaintiffs say that a quarter of the 18 percent mandatory gratuity charged in the banquet room never made it to the waitstaff. Soon after the suit was filed the restaurant changed its policy, and it appears willing to settle the case out of court.
''Our client will do what is right for its employees,'' said David M. Kozol, an attorney representing The Bay Tower Room.
Joe Lichtblau, the attorney for the class action suit, said servers are seeking 4.5 percent of nearly a decade's worth of banquet bills, which frequently top $10,000.
''There's a lot of money on the table here and everybody is doing it,'' Lichtblau said. ''They do it because they can get away with it.''
© Copyright 2002 Globe Newspaper Company