My question involves small claims court in the state of: Ohio
Here is my situation:
I work as a barback at a casino where it is customary to receive tips from bartenders and cocktail servers for your service. This custom used to be required by management, but that policy changed last Fall for reasons that are unclear (it may change again very soon because the problem I am about to describe was not expected). However, our employer's intention is still to have barbacks treated as tipped employees even without managers enforcing the tip-sharing policy. The servers and bartenders signed an S.O.P. stating that it was no longer appropriate for managers to compel them to leave tips, but they were still expected to tip barbacks at a rate of 10% to 20% based on quality of service, and barbacks still expected these tips. The servers and bartenders also tip us at least some amount of money for every shift, at a rate they tell us (or sometimes imply) is 15%. While it is likely true that the cocktail servers are tipping at the recommended rate (which is standard for the industry), the bartenders have been tipping much lower than they claim to be. No bartender or server has admitted to under tipping or not tipping, despite claiming the right to do both if they so wish. While they tell us what we receive is 15% of the total tip pool (only the bartenders pool their tips, which is why they are a greater problem) it is very clear on some days that this is not true.
The bartenders work in shifts that roughly spread out like: 10:30am-7pm, 1:30pm-10pm, 4pm-12:30am and 6pm-2:30am. After opening at 11am, every time one bartender begins or ends their shift they pool their tip buckets together and assign a bartender to count it, divide it between the bartenders and tip the barback who worked during that time period. There is a 30 minute pre-shift meeting for employees at all shifts save the 4pm shift (except on weekends, then all shifts have a meeting), so they count their tips at 2pm, 4pm or 4:30pm, 7pm, 10pm, 12:30am and 2am. The room in which they count their money is loaded with cameras, so it is all recorded. After this is done, they place the divided money in clear, plastic envelopes and go back to the bar and hand them to each bartender or set them at their assigned cash register. Except after 2am, when all the bartenders are present in the count room awaiting their money. Often, when they leave envelopes for other bartenders at the bar they often write the amount of cash inside so it is easy for us to see what they made. Other times we hear them tell each other what they made, sometimes we used the bill counter in the count room after they do and see what the last amount ran was. We also might be behind them at the employee cashier desk, where we go to exchange smaller bills for larger ones, and hear the attendant read the amount back to them (this room is also covered in cameras). There are also a few occasions, though rare, where a bartender will tell us what they made for a given night.
The amount I am given, and this is true for the other barbacks as well, averages from 3% to 6%. Sometimes that has to be split between 2 or 3 barbacks (such as a busy weekend night). On a good night, we might get 7% or 8%, but no more than that. If we attempt to ask for clarification on this subject from one of the bartenders who worked that night, they often refuse to speak to us and become visibly agitated and sometimes even frightened. We are very careful to be polite, avoiding any threatening language or confrontational behavior, so we are not intentionally intimidating them. Other times, they will lie to us that what we received was 15% (or 10% as some think 10% is the standard), or tell us that another barback must have stolen the tip envelopes (this would actually get investigated, but often enough the barback they accuse is gone hours before they drop their tips in the safe). While they do not speak to us directly about the matter, they will often speak about it amongst themselves but in our immediate presence where they know we can hear them. They tend to repeat the same two things over and over (para-phrasing), "According the state law, we don't have to give them anything." To which another will reply, "Yeah, we can give them whatever we want." Sometimes they will laugh about it, I suspect they are just teasing the barbacks since they already "know" the things they keep repeating to each other.
My position on the subject is this:
Although they are correct that they have the right to retain all their tips as that is their own money, they still freely consented to an arrangement where they would give an agreed portion of those tips to other employees. This can be attested to by the S.O.P. form they signed, by their own statements that what they give is 15%, the fact the 15% is the standard rate for tip-outs for barbacks in the industry and further by their own pattern of behavior which sees them leaving tips for the barbacks every shift. I have on several occasions asked to discuss the matter with them and been refused, and so to have my offers for mediation within the workplace (with a member of management or human resources over-seeing it). To me, these are signs of acting in bad faith.
That said, these are my questions:
Do I have a good case for breach of contract?
Would my employer have to provide the relevant surveillance footage as evidence for the small claims case?
Would I be limited to asking for damages on nights where I can prove the exact numbers of what they made and what they tipped, or would I be able to ask for a reasonable estimation if I can prove a prolonged pattern of under-tipping?
I feel like my case for the existence of the contract is good, but I am worried about being able to provide the necessary evidence for the breach(even though it does exist). While I am looking to recover losses, I feel securing future income is more important. I would also emphasize my reliance on tips to support myself rather than any element of exchange between the barbacks and bartenders as it seems a stronger argument (and because their under-tipping was so severe that I would have lost my home and car were it not for the generosity of a relative giving me money for living expenses).
Thanks in advance to anyone who reads this, I hope it wasn't too long or over-detailed.
Here is my situation:
I work as a barback at a casino where it is customary to receive tips from bartenders and cocktail servers for your service. This custom used to be required by management, but that policy changed last Fall for reasons that are unclear (it may change again very soon because the problem I am about to describe was not expected). However, our employer's intention is still to have barbacks treated as tipped employees even without managers enforcing the tip-sharing policy. The servers and bartenders signed an S.O.P. stating that it was no longer appropriate for managers to compel them to leave tips, but they were still expected to tip barbacks at a rate of 10% to 20% based on quality of service, and barbacks still expected these tips. The servers and bartenders also tip us at least some amount of money for every shift, at a rate they tell us (or sometimes imply) is 15%. While it is likely true that the cocktail servers are tipping at the recommended rate (which is standard for the industry), the bartenders have been tipping much lower than they claim to be. No bartender or server has admitted to under tipping or not tipping, despite claiming the right to do both if they so wish. While they tell us what we receive is 15% of the total tip pool (only the bartenders pool their tips, which is why they are a greater problem) it is very clear on some days that this is not true.
The bartenders work in shifts that roughly spread out like: 10:30am-7pm, 1:30pm-10pm, 4pm-12:30am and 6pm-2:30am. After opening at 11am, every time one bartender begins or ends their shift they pool their tip buckets together and assign a bartender to count it, divide it between the bartenders and tip the barback who worked during that time period. There is a 30 minute pre-shift meeting for employees at all shifts save the 4pm shift (except on weekends, then all shifts have a meeting), so they count their tips at 2pm, 4pm or 4:30pm, 7pm, 10pm, 12:30am and 2am. The room in which they count their money is loaded with cameras, so it is all recorded. After this is done, they place the divided money in clear, plastic envelopes and go back to the bar and hand them to each bartender or set them at their assigned cash register. Except after 2am, when all the bartenders are present in the count room awaiting their money. Often, when they leave envelopes for other bartenders at the bar they often write the amount of cash inside so it is easy for us to see what they made. Other times we hear them tell each other what they made, sometimes we used the bill counter in the count room after they do and see what the last amount ran was. We also might be behind them at the employee cashier desk, where we go to exchange smaller bills for larger ones, and hear the attendant read the amount back to them (this room is also covered in cameras). There are also a few occasions, though rare, where a bartender will tell us what they made for a given night.
The amount I am given, and this is true for the other barbacks as well, averages from 3% to 6%. Sometimes that has to be split between 2 or 3 barbacks (such as a busy weekend night). On a good night, we might get 7% or 8%, but no more than that. If we attempt to ask for clarification on this subject from one of the bartenders who worked that night, they often refuse to speak to us and become visibly agitated and sometimes even frightened. We are very careful to be polite, avoiding any threatening language or confrontational behavior, so we are not intentionally intimidating them. Other times, they will lie to us that what we received was 15% (or 10% as some think 10% is the standard), or tell us that another barback must have stolen the tip envelopes (this would actually get investigated, but often enough the barback they accuse is gone hours before they drop their tips in the safe). While they do not speak to us directly about the matter, they will often speak about it amongst themselves but in our immediate presence where they know we can hear them. They tend to repeat the same two things over and over (para-phrasing), "According the state law, we don't have to give them anything." To which another will reply, "Yeah, we can give them whatever we want." Sometimes they will laugh about it, I suspect they are just teasing the barbacks since they already "know" the things they keep repeating to each other.
My position on the subject is this:
Although they are correct that they have the right to retain all their tips as that is their own money, they still freely consented to an arrangement where they would give an agreed portion of those tips to other employees. This can be attested to by the S.O.P. form they signed, by their own statements that what they give is 15%, the fact the 15% is the standard rate for tip-outs for barbacks in the industry and further by their own pattern of behavior which sees them leaving tips for the barbacks every shift. I have on several occasions asked to discuss the matter with them and been refused, and so to have my offers for mediation within the workplace (with a member of management or human resources over-seeing it). To me, these are signs of acting in bad faith.
That said, these are my questions:
Do I have a good case for breach of contract?
Would my employer have to provide the relevant surveillance footage as evidence for the small claims case?
Would I be limited to asking for damages on nights where I can prove the exact numbers of what they made and what they tipped, or would I be able to ask for a reasonable estimation if I can prove a prolonged pattern of under-tipping?
I feel like my case for the existence of the contract is good, but I am worried about being able to provide the necessary evidence for the breach(even though it does exist). While I am looking to recover losses, I feel securing future income is more important. I would also emphasize my reliance on tips to support myself rather than any element of exchange between the barbacks and bartenders as it seems a stronger argument (and because their under-tipping was so severe that I would have lost my home and car were it not for the generosity of a relative giving me money for living expenses).
Thanks in advance to anyone who reads this, I hope it wasn't too long or over-detailed.
Evidence: Breach of Contract with Co-Workers
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