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NLRB: Discussion Among Employees About Tip Pooling is Protected Concerted Activity

 

This Advice Memorandum from the National Labor Relations Board’s Associate General Counsel, Jayme Sophir, addressed whether employees which discussed and complained about tip pooling at work constituted protected concerted activity.

In relevant part, an employer in New York operated a chain of steakhouses.  While tip pooling was in place at these steakhouses, some of the employees objected to it on the grounds that it was not transparent and improperly divided tips among the workers.  Employees were told not to complain or talk to each other about the tip pool and were told that doing so would endanger their jobs.  Despite the employer later attempting to provide some clarity as to how the tips were being divided, rancor still existed among some employees.  At one point, the employees were told by a general manager that some employees that had been talking about the tip pool were “cleared out” and the employer would continue to do so.

In the Advice Memorandum, it was noted that employee discussions and complaints about employers’ tip policies are “undeniably” protected by Section 7 of the National Labor Relations Act (“NLRA”.)  Based upon the facts as presented, it was found that the employees’ repeated discussions and complaints about the tip pooling related to working conditions over which the employer exerted control.  As a result, under the NLRA, these discussions and complaints about the tip pooling constituted protected concerted activity.


For a copy of the Advice Memorandum:  https://apps.nlrb.gov/link/document.aspx/09031d4583290685

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