CACI No. 2752. Tip Pool Conversion - Essential Factual Elements (Lab. Code, § 351)
Judicial Council of California Civil Jury Instructions (2023 edition)
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2752.Tip Pool Conversion - Essential Factual Elements (Lab.
Code, § 351)
[Name of plaintiff] claims that [name of defendant] [took money/allowed
[specify ineligible individual(s) or class(es) of individuals] to take money]
from a tip pool that [name of plaintiff] was entitled to receive. [The court
has determined that [specify ineligible individual(s) or class(es) of
individuals] [was/were] not eligible to receive money from a tip pool.]
To establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of defendant] was [a/an] [employer/[other covered
entity]];
2. That [name of plaintiff] was an employee of [name of defendant];
3. That [name of defendant] maintained a tip pool in which money
left by patrons in an amount over and above the actual amount
due for [specify services rendered or goods, food, drink, or articles
sold] was pooled to be distributed among employees including
[name of plaintiff]; and
4. [That [name of defendant] took money from the tip pool that
[name of plaintiff] was entitled to receive.]
4. [or]
4. [That [name of defendant] allowed [specify ineligible individual(s) or
class(es) of individuals] to take money from the tip pool that [name
of plaintiff] was entitled to receive.]
[Name of plaintiff] does not have to prove the exact amount of money
that was taken.
[Name of defendant] is required to keep accurate records of all tips or
gratuities received by [him/her/nonbinary pronoun/it] for
[his/her/nonbinary pronoun/its] employees.
New November 2021
Directions for Use
This instruction sets forth the elements required for an employee to establish
wrongful conversion of tip pool money.
Element 1 may be omitted if there is no dispute regarding the defendant’s status as
an employer.
Element 4 presents alternative factual scenarios: the defendant’s direct conversion of
tip pool money and the defendant’s misallocation of tip pool money to any
individual who should not be included in the tip pool, for example, the employer,
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the owner, managers, and supervisors. For the second option, the court must
determine as a matter of law whether an individual was properly included in the tip
pool. (See Lab. Code, § 350(a), (d) [defining employer and agent to include “every
person other than the employer having the authority to hire or discharge any
employee or supervise, direct, or control the acts of employees”], § 351 [prohibiting
employers and agents from receiving any gratuity paid to an employee by a patron].
Include the optional sentence in the introductory paragraph if the court has
determined that the defendant allowed ineligible individuals to partake in the tip
pool.
Sources and Authority
• “Employer” Defined. Labor Code section 350(a).
• “Employee” Defined. Labor Code section 350(b).
• “Gratuity” Defined. Labor Code section 350(e).
• Employee Gratuities. Labor Code section 351.
• Employer’s Duty to Keep Records. Labor Code section 353.
• “The purpose of section 351, as spelled out in the language of the statute, is to
prevent an employer from collecting, taking or receiving gratuity income or any
part thereof, as his own as part of his daily gross receipts, from deducting from
an employee’s wages any amount on account of such gratuity, and from
requiring an employee to credit the amount of the gratuity or any part thereof
against or as a part of his wages. And the legislative intent reflected in the
history of the statute, was to ensure that employees, not employers, receive the
full benefit of gratuities that patrons intend for the sole benefit of those
employees who serve them.” (Leighton v. Old Heidelberg, Ltd. (1990) 219
Cal.App.3d 1062, 1068 [268 Cal.Rptr. 647].)
• “[W]hen a customer leaves a tip in a collective tip box, the customer necessarily
understands the tip is not intended for a particular person and the tip will be
divided among the behind-the-counter service employees. It is undisputed that
these employees consist of baristas and shift supervisors. It would be
inconsistent with the purpose of the statute to require an employer to disregard
the customer’s intent and to instead compel the employer to redirect the tips to
only some of the service personnel.” (Chau v. Starbucks Corp. (2009) 174
Cal.App.4th 688, 699 [94 Cal.Rptr.3d 593], original italics.)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§ 456
1 Wilcox, California Employment Law, Ch. 4, Payment of Wages, § 4.10 (Matthew
Bender)
CACI No. 2752 LABOR CODE ACTIONS
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