April 23, 2014

A Tip For Dealing with Automatic Gratuities in 2014

A new Internal Revenue Service ("IRS") rule, set to take effect in January 1, 2014, may eliminate a common practice in the restaurant industry. Often, an automatic gratuity, normally 18%, is added to the bill of large parties. Automatic gratuities were adopted by restaurant employers as a means for ensuring that servers do not get stiffed on expensive bills. Servers heavily rely on tips to supplement a salary that is often times lower than the federal minimum wage.

Traditionally, automatically-added gratuities have been classified as employee tips. As such, it is up to the employees to report the money as income. Starting in January, automatic gratuities will be categorized as "service charges" - making them regular wages and subject to payroll tax withholdings. Employers will have to track and report any automatic tips and will be required to include the "service charge" payments in employees' W-2 wages. Further, employers will no longer be able to count these tips as a credit to reduce their minimum wage obligation. It is a lose-lose situation because servers will not see their automatic gratuity money until payday; making it more difficult to survive on a small salary.

Many major chains, like Olive Garden and Red Lobster, have eliminated automatic gratuities in response to the approaching deadline. For restaurants that opt to keep the automatic gratuity system, payroll accounting will become much more complicated. Tips from automatic gratuities will have to be factored into hourly pay rates, which means hourly rates could vary based on how many large parties are served in any given hour.

It would be wise for smaller restaurants to follow the chain restaurants' lead by eliminating automatic gratuities altogether. Doing so will not only to lessen compliance requirements and tax burdens, but will also keep employees happy by ensuring that the tips they earn can immediately be pocketed.

© 2014 by McBrayer, McGinnis, Leslie & Kirkland, PLLC. All rights reserved.

About the Author

James H. Frazier III, McBrayer Law Firm, Real Estate Attorney
Managing Member

Mr. Frazier is the Managing Member of the firm, a position he has held for the past 18 years. Mr. Frazier's practice focuses on real estate, bankruptcy, mergers and acquisitions and general corporate practice with special emphasis on mineral and energy law. Mr. Frazier has extensive experience in coal transactions (including leases, permitting, coal sales contracts, asset purchases, equity interest transactions, transportation agreements, overriding royalty agreements, consulting contracts, and contract mining agreements). In addition to his law practice, Mr. Frazier also serves as the...


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