Waiter demands that employers pay out service charge to staff

POSTED: 09/12/11 12:12 PM

Attorney Van Sambeek: “The demand is legal nonsense”

GREAT BAY, St. Maarten – Waiter Rui Bagina is on a mission: he demands that businesses in the hospitality industry share the 15% service charge they add to their bills with their employees. But civil law attorney Mr. W. van Sambeek says that the demand is legal nonsense.

“The service charge is obligatory. It is simply part of the operating expenses.”

Bagina took his complaint last week to the Lloyd Richardson radio show.

“I encourage all the restaurant and hotel workers whose employers refuse to give them the service charge to unite and to challenge them in court demanding payment.”

Bagina suggests that employees could demand “at least $1,000 for each year they have been working for a company.” He claimed that the service charge – a 15 percent addition to hotel and restaurant prices – “is to be distributed among all the workers without discrimination” – from waiters, bartenders and dishwashers to night auditors, front desk staff, security guards and even gardeners.

But attorney Van Sambeek says that there is a legal difference between tips and the service charge.

“Customers pay tips voluntarily. The service charge is obligatory. It is not possible not to pay it; a restaurant won’t let you get away with it, and may even call the police if you refuse to pay the total on the bill. So other than the tips, the service charge does not belong to the employees.”

Van Sambeek adds that the service charge is in a way misleading, because customers are led to believe that indeed, this service charge is some sort of an obligatory tip that will benefit the employees.

“This leads people to give less tips or no tips at all. That is why I am a proponent of abolishing the service charge.”

The Supreme Court in the Netherlands has ruled on the service charge in the so called New York-arrest – named so after a restaurant established in Rotterdam.

Rui Bagina in the meantime, maintains that the service charge belongs to the employees, and that managers and supervisors ought to be excluded from sharing in it.

Bagina refers in a statement to an article that appeared in the Newsday Newspaper in 1988, estimating that hotels and restaurants took in between $400,000 and $800,000 in service charges that year. He furthermore refers to a court case from May 2006, when Judge Luis de Lannoy “ruled in favor of four workers who claimed tips and service charge that had been taken away by their employer.”

Recent jurisprudence is not entirely clear about the service charge. In January 2010 The Boathouse in Simpson Bay fired a waiter who had pocketed $37, the service charge on a $248 restaurant bill for a party of six. The waiter refused to hand the money over to his employer, saying this was his tip. The restaurant fired him, but the Appeals Court later declared the dismissal unjustified. At the same time, the court rejected the waiter’s claim to full payment of tips and service charges. The court ruling reveals that The Boathouse has made an agreement with labor unions about the service charge but that it did not adhere to it.

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