[chris]

"Samantha Smith was thrilled to be among the first women to be hired at Locke-Ober, a legendary restaurant here, when it reopened under new management last fall. But the glow did not last.

The wait staff learned that management was taking up to 60 percent off the 'pooled' cash and credit-card tips to distribute to other staff, including maitre d's and managers, she said.

'I would never work in a pooled house again,' said Smith, who said she collected up to $400 per night in tips at Locke-Ober and now collects half that amount at another restaurant. 'It's a way to take advantage of the customer and the employee. It doesn't ensure better service. It pits employees against each other, and it allows management to control you through your wages rather than through your work performance.'

Smith is among scores of waiters and waitresses who have filed lawsuits against several of Boston's swankiest dining establishments. They contend that restaurant executives skimmed money from their tips and in some cases fired servers who complained about the practice.

The accusations target such local culinary institutions as Locke-Ober -- where John F. Kennedy Jr. was known to order lobster stew, drink the broth and give the meat to the waiter -- and L'Espalier, which serves New England-French cuisine in the intimate setting of a 19th century Back Bay townhouse.

A class-action suit on behalf of 150 former banquet staff members of the Bay Tower in the city's financial district also is pending. Some servers are planning to file a separate lawsuit against the Boston branch of Morton's Restaurant Group, said attorneys for plaintiffs in the four separate legal actions.

At the heart of the disputes is tip pooling, a practice that is fairly common -- and commonly complained about -- throughout the restaurant industry. It has come to the fore in Boston because of the unusual confluence of lawsuits, and because those lawsuits involve high-end restaurants.

Traditionally, waiters and waitresses give a small percentage of their tips to bartenders and busboys, and leave with most of their earnings. But servers involved in these lawsuits say they were forced to hand over all their cash tips to management at the end of each night. Then, without their input, the money was pooled and divided among servers, bartenders, busboys, food runners and some managers -- including maitre d's, floor supervisors and others.

'These restaurants are clearly violating Massachusetts wage laws,' said Shannon Liss-Riordan, a lawyer representing plaintiffs in three of the suits. 'The money that servers receive in tips under the law is their own money, and they can decide what to do with it. It is entirely improper for the restaurants to be making that decision for the wait staff.'

Former waiters at L'Espalier allege the restaurant took 5 percent of their tips and used the money to pay a manager -- and Liss-Riordan said the restaurant changed its practice only after waiters who complained were fired. Former waiters at Morton's say they were told by managers how to distribute their tips, she said.

Banquet servers who used to work at the Bay Tower, which is involved in settlement negotiations, allege management retained 1.5 percent of the gratuity charge to pay a small group of management-level employees, whether or not they were working.

In addition, managers took a portion of their tips and did not pay wait staff a separate 3 percent administrative overhead fee charged to patrons, according to a lawsuit filed in 1997 that was certified as a class action earlier this year.

Charles Moran, 46, who worked for the Bay Tower for about four years, said he was forced to forfeit up to one-fifth of his tips -- a loss of about $30 on a typical night.

'I thought the way they were paying management out of our money was unfair and unjustifiable,' Moran said through his attorney, Joseph Lichtblau. 'Other waiters felt that way, but they were afraid to bring it up.'

Karl Titz, assistant professor of the Conrad N. Hilton College of Hotel and Restaurant Management at the University of Houston, said the allegations are disturbing. 'When I saw they were using it to subsidize managers' wages, if that in fact is what they were doing, that would be a new twist on tip pooling,' he said. 'Could it be going on elsewhere? It's certainly a possibility.'

L'Espalier proprietor and chef Frank McClelland said there is 'no merit absolutely at all' in the lawsuit filed against his restaurant. Waiters and waitresses agree when they are hired to pool tips, he said, and they vote on tip distribution and percentages as a staff. He said that bartenders and sommeliers currently receive 5 percent of the pooled tips and that servers recently voted to suspend distribution to maitre d's. Waiters, he said, typically leave with a net take of up to $400 per night.

'People are told if they are looking for a job at L'Espalier, it's a pooled house. It's always been that way,' McClelland said. 'I have some of the best waiters in the city, and I respect them a great deal. . . . We get along, and we work really hard together as a team.'

Calls to restaurant management and attorneys for Locke-Ober, Bay Tower and Morton's were not returned. But Thomas Baldwin, an executive vice president of Morton's, told the Boston Globe that 'all tipping and tip sharing, if any, is fully voluntary.'

The problems inherent in tipping are not unique to Boston, said Linda Shea, associate professor of marketing and graduate program director at the University of Massachusetts at Amherst's Department of Hotel, Restaurant and Travel Administration.

'There's always been dirty play,' she said. 'It's something that is more important at the higher level of food service because you tend to get professional wait staff. If tipping weren't allowed, and they were just paid a higher salary, you wouldn't get those individuals. They know their business, and they do it well.'

Peter Christie, president of the Massachusetts Restaurant Association, said that if any violations of the state's wage laws had occurred at these restaurants, they would not be intentional.

'That front-end employee is what makes or breaks the restaurant. These servers are treasured commodities,' he said. 'These are high-end places. Nobody would expose themselves to a fine or penalty or the bad press unless they didn't realize they were doing it. Unfortunately, ignorance is no excuse when it comes to laws.'

Christie said the association believes that mandatory tip pooling is legal and that tips should be redistributed among those people 'directly involved in the service of the meal.' The attorney general's office and attorneys for the plaintiffs in the lawsuits, however, interpret the Massachusetts statute as both prohibiting employers from retaining tips and prohibiting mandatory tip pooling.

'In theory, we all agree you should not be taking money out of tip pools to pay the chef's salary out back so that you can pay the chef less per hour. Everyone agrees that is blatantly wrong,' Christie said. 'The big issue is, who gets the money?'

Lichtblau, the attorney for a waiter at the Bay Tower, said that diners should be aware of what is going on.

'Patrons ought to ask how tips and service charges included on their bill are being divided and to whom they are being paid,' he said. 'It's important to know the person who served you is really being compensated for their work.'" (Pamela Ferdinand, The Washington Post, April 27, 2002)

[annmarie]

i use to be a waitress in a restaurant when i was working my way
threw college i tell ya the bosses at the ihop were asses and the
customers who werent regular werent much better god i was
glad i recieved my doctorate and became a librarian then a
doctor i worked hard so that id never have to be a waitress
again it was grueling work