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Aug 10, 2008 06:33 PM

Is not tipping illegal?

I was out last night at a restro with my family, and the table next to us was a large family of 12. The service they had was horrid. Missing sides, a missing entree, they waited , and waited and waited over an hour between the appys and the entrees, drinks left unfilled... etc etc.. They constantly were asking our server to get thier server. When the bill came the patriarch was furious the server added 20% for service to his final tab, he deleted it and paid in cash, sans tip... the server and the manager tried to stop him at the door, the manager said he was going to call the police. Needless to say the patriarch said GO RIGHT AHEAD.. you ROBBED me of service!!

I honestly sided with him on this one... his service was atrocious and not worth what they demanded from him.

We left before we could see what happened in the end.. but now my curiosity is piqued.

Is it illegal to not tip?

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  1. Not per se for all tips, however: it is highly likely that on the menu it said something to the effect that all parties larger than 6 will have an automatic 20% tip added to the bill. If that is in fact the case at this place, then yes, if someone refused to pay they could be breaking the law just as surely as if they tried to leave without paying for food. On the other hand, the customer could argue that no service was provided so 20% is not indicated no matter what the menu says, just as if I am not delivered the food I ordered and they refuse to make it right then I'm not paying for the food.

    That being said, any decent restaurant would not hold the diner to this were the service truly that bad. One time my party of 10 had unconsciounably horrid service and there was an auto-18% tip included. I had words with the manager and it was reduced by half. They didn't have to do this. It was the right customer-service goodwill common sense move.

    3 Replies
    1. re: Leonardo

      "On the other hand, the customer could argue that no service was provided"

      One could argue this if one wanted to be a liar and a cheat. Seated and served dinner - no service was provided?

      1. re: FrankJBN

        the seat, the food, the heat/AC, lights, muzak,etc...are in the price of the food. "service" as it is commonly used, is the hospitality your waiter has(not)provided.

        1. re: nkeane

          Actually, Leonardo is right. You enter into a contract with the restaurant when you are told up front that service is included and you make the agreement when you order. What you can do is to talk to the owner or manager about the service and ask for the tip to be removed or reduced - depending on the circumstances. My bet is that even if the manager does not agree, he/she will do it even if they have to partially eat it. Too many times with a fight over the added tip for a server means they are fired because there is a reason for customers objecting. Restaurant owners want happy customers - period.

          Heat/AC, Muzak - is built into the cost of the food. It is not what you tip on.

          If I had a terrible experience, you can bet your booty I would not be sucking it up and paying the full tip. Nope. If I HAD to, you could not KEEP me off the internet talking about it. Owners know that. Servers want to keep jobs... it all works out if there are no complete idiots involved.

    2. IANAL, but I'm pretty sure that the automatic gratuity added to a check for large parties is nothing more than a convenience for the customer so they don't have to calculate the tip. It's not illegal to not tip, especially when the restaurant is obviously, as in this case, using the auto-grat as an excuse to provide crappy service.

      11 Replies
      1. re: Buckethead

        "I'm pretty sure that the automatic gratuity added to a check for large parties is nothing more than a convenience for the customer"

        You don't really believe this, do you? If you do, I'm selling a car that doesn't run. It's not a rip-off, it's a safety feature I provide to my customers so they won't have to avoid accidents.

        1. re: FrankJBN

          I'm not sure what your analogy is meant to imply. What I meant was that I don't think the auto-gratuity has any legal standing, that just because a restaurant prints that on the menu doesn't mean you are legally obligated to pay it. If I'm mistaken, then tell me.

          If the OP's account of the meal in question is accurate (missing dishes, hour-long waits between courses, etc.), then I don't see how the restaurant can expect 20% gratuity, no matter what their menu says.

          1. re: Buckethead

            I don't know whether or not the auto-grat has legal standing. But the reason why a lot of restaurants tack on 17-20% for larger parties is that larger parties involve a lot more work than dealing with a 2 or 4 top. Turnover is also a lot slower with larger parties. If the waiter is stiffed on a larger party (for whatever reason), it can be very frustrating.

            Now, in the scenario that the OP posts, I probably also would have disputed the 20% charge. Maybe not 0% (as they did do some work), but it would leave a bad taste in my mouth to leave 20.

            1. re: Buckethead

              "What I meant was that I don't think the auto-gratuity has any legal standing, that just because a restaurant prints that on the menu doesn't mean you are legally obligated to pay it."

              Its clearly printed on the menu, along with the prices of the food. If you didnt like your food you cant then suddenly decide you were going to pay 1/2 price or not pay anything!

              That having been said, and as others have stated, many restaurants will comp the food, or offer a replacement - be it for bad food or service, but by no means are they required to.

              1. re: joe777cool

                Just because they put it in writing, it's true? I think not. Think gravel trucks that have a "not responsible for broken windshield" or any establishment that displays a "not responsible for accidents". Both in fact are responsible. I guess they just think maybe you're dumb enough to believe them and not sue if they cause you harm.

                1. re: silvergirl

                  I dont have the foggiest clue how you made that leap. The menu is a form of contract. You agree to say said dollar amount for said hamburger. If you dont pay said amount THE POLICE WILL BE CALLED. There is an exchange of goods and services here and the customer has every right to deny the auto gratuity by taking their business elsewhere.

                  1. re: joe777cool

                    Now that you say it that way, this whole "mandatory 18% gratuity thing" just reminds me of those tourists traps (really, traps in the real sense of the word) that they warn people about in the red light districts of Europe - where they automatically charge you $100 for a drink (enforced by large thugs) just because you step into their establishment because "that's what it says on the menu".

                    The philosophical difference is really a fine line here.

                    1. re: HungWeiLo

                      so you are equating 18% added gratuity to a shake down by street thugs?

                      Lets just say I am glad that I have never been to the parts of Europe you have been to.

            2. re: Buckethead

              >>>...I'm pretty sure that the automatic gratuity added to a check for large parties is nothing more than a convenience for the customer so they don't have to calculate the tip.<<<

              Actually it is the other way around. It is not uncomon for a large party to run up a bill in he hundreds of dollars, even at a moderately priced establishment. (A part of 10, average of $25 each is not hard to hit with entrée, beverage, & dessert.) Then the $300 check comes and the one paying the check figures out a 20% tip will be (GASP!) $60, s/he quietly slips a 20 on the table and slinks away, and the server, who had to work extra hard to keep everyone happy, gets stiffed. This happens more often than not. That is why you see a "mandatory tip" charged for large parties. People don't seem to mind 20% on a modest lunch tab, but once the price approaches 3 figures sticker shock sets in, even if the service was great.

              That being said, a tip is also *earned*. Having worked in the industry and was taught by the chef/owner what kind of service is expected, I am anal about service. If the service is below par, (or worse) I would definitely deduct the mandatory tip and pay what I thought *was* earned. I would also ask to speak with the manager privately to explain my actions with examples of the poor service. If s/he makes excuses for the server, than I would withdraw the entire gratuity.

              1. re: Buckethead

                I am right with you, although the other thing the pre-added tip serves to accomplish is hoping that the party does not notice and further tips on top of the already high-percentage tip. I had a 20% pre-added at a respected LA establishment and when I paid the exact amount the server gave quite the frown. Thanks buddy, not coming back.

              2. Interesting question...i'm not sure, but i did find this online


                3 Replies
                1. re: iluvtennis

                  From that link:

                  "As for the legality of the practice, at one time, it was generally considered that a diner entered into a “contract” with the restaurant by virtue of ordering food, and was obligated to pay according to the terms of the contract, including any added gratuity (as long as the policy was stated in writing on the menu). However, in 2004, a New York restaurant owner sued a man for not paying the mandatory gratuity. In a surprising decision, the judge ultimately decided that “gratuity” by definition means “discretion,” and therefore payment could not be forced. As a result, don’t be surprised if that disclaimer printed on menus now says “service charge” instead of “gratuity.” "

                  1. re: iluvtennis

                    That was exactly my thought - The word, "gratuity."

                    I kinda like the party that said, "NO!" to the restaurant. It just seems to me that over the years tipping has shifted to something that you're supposed to do, instead of something that you want to do.

                    1. re: iluvtennis

                      that's why so many restaurants now call it a "service fee."

                  2. There is no law requiring you to tip. A tip is not an entitlement, it needs to be earned. Contrary to alot of 'Hounders here, I never tip on poor service. I don't want to hear how hard servers work, blah, blah, blah. I work hard to earn a living too. Kudos to the patriarch for having the cajones to stand up against this kind of nonsense.

                    14 Replies
                    1. re: BiscuitBoy

                      "I work hard to earn a living too"

                      And when you make a mistake of any kind, does your pay get docked? If not, do you refund it to your employer?

                      1. re: FrankJBN

                        Any kind of mistake? Of course not. However, missing dishes, hour long waits, etc. is pretty major. Let's not make servers into unsung heroes. Tipping on poor performance is ridiculous, and will only perpetuate the problem....Kinda like welfare

                        1. re: FrankJBN

                          "And when you make a mistake of any kind, does your pay get docked? If not, do you refund it to your employer?"
                          This is comparing apples and oranges. The server is judged by each and every table - not one consistent employer - and that table contributes by way of tips to the server's salary.

                          At a regular job, if one makes a mistake they are not docked that one time. However, if the mistakes keep piling on they'll be passed over for a raise or promotion or get fired whereas the server can make up their 'mistake' at the next table they serve.

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                        2. re: BiscuitBoy

                          "I work hard to earn a living too"
                          Do you make half of minimum wage and then only get a bonus if your performance is above the standards of the fickle customer?

                          As to the original post, I doubt that the police could do anything, but I'm sure it would be an interesting/entertaining situation none the less (assuming you are observing and not involved). I would have tried to stick around to see how it was resolved!

                          1. re: pollymerase

                            I'll go out of my way to please "fickle" client of mine, to make a sale. That's the difference, that makes some people driven, and some people deadwood. And yes, my pay decreases with poor performance...Doesn't yours? Fickle is one thing, outright neglect is another.

                            1. re: BiscuitBoy

                              I love how some people pretend that servers are the only people in the world that depend on the "fickle" nature of their customers for a paycheck. The vast majority of companies are sustained by a sales force that caters to their customers and make or break the bank based on what their customer does. If a real estate agent "sells" a house and does all of the work up to the point of obtaining the mortgage and the customer has bad credit, guess what, the realtor doesn't get paid! Please quit acting like servers are the only people dependent on their customers and therefore should always be tipped well!

                              1. re: Rick

                                Well said Rick, I watched my hard working Mom give 37 years to fine jewelry buying for a major chain only to be told her Christmas sales receipts for the sixteen stores she covered had to be X amt. of dollars if she expected a raise or year end bonus. The entire holiday season sales ruled her annual sales totals. So if diamonds didn't sell, or the gold was not as popular with customers that year-her income reflected it. Try guessing what customers will buy for 37 years without a tip!

                                I know servers and restaurants don't have it easy. I applaud those of you who take pride in your work & business, but every profession has it perks and pitfalls.

                                1. re: HillJ

                                  But this is a food related board. Of course there are similar professions where the cheap customers stiff hard working people in the service business.

                                  That said, servers have to deal with the public in all its glory and still face getting stiffed.

                                  1. re: dolores

                                    of course dolores. We agree, similar points can be made across the service industry. It was the folks working in service who might/do feel they are the "only ones" getting stiffed that I was referring to. I see the irony. Servers are also customers..and depending on what side (or both) of the irony discussed the "who" is getting stiffed changes.

                            2. re: pollymerase

                              Objecting to poor service is hardly "fickle." If a waiter is clearly drunk, can't remember which table ordered which dishes, and spills clam juice on the table, is it "fickle" to regard that as poor service?

                              1. re: mpalmer6c

                                the things you mention are objective.
                                However, if you read this board, you'll find people who think it's bad service if they are asked for a drink order within a minute or two of being seated and people who think it's bad service if they are not immediately asked for a drink order.
                                You will hear from people who expect servers to clear their plates as soon as they are finished, and others who think it bad service when the servers do not wait until everyone at the table is finished.
                                You will find people who complain that servers did not offer separate checks and others who complain that they were kept waiting when servers figure separate checks for others.

                                There have been debates over dozens of service issues where one side claims that one action is bad service and the other side insists on the opposite. So while it may not be fickle to object to bad service, there is no clear consensus on many service issues (or their is a consensus but there is a vocal minority who argues against that consensus), which ultimately results in the same thing.

                                1. re: nc213

                                  It goes both ways. You also have people who figure that the server deserves a 25% tip (post-tax) just for showing up to face another day of the hardest job in the world.

                                  Personally, not much bugs me when it comes to servers doing things. I think that people who complain about the things you mention are pretty petty. OTOH I expect servers to *really* give me good service if they expect a good tip. If they're just average, they should be paid "just average".

                              2. re: pollymerase

                                Well, it seems that many in the "public" feel it's OK to call 911 if McDonald's misses the pickles. Maybe the police would find this at least a level above that?


                              3. re: BiscuitBoy

                                THANK GOODNESS, the voice of reason.

                              4. This is a good reason to bring enough cash to pay for dinner on the remote chance of something like this happening.

                                This was resolved the correct way - as a business rather than legal matter. Resorting to the law here would have been the depth of silliness.

                                1 Reply
                                1. re: Karl S

                                  >>This is a good reason to bring enough cash to pay for dinner on the remote chance of something like this happening.

                                  Good point, Karl S.

                                  gryphonskeeper, the head of the party of 12 did exactly what I would do in such a situation. Kudos to him.