Lightspeed Commerce : What You Need To Know About Automatic Gratuity Laws In Restaurants

Automatic gratuity can come in handy in many situations, like when a table wants separate checks for each person, for banquets and other functions, or when you seat a large party (typically 6-8 or more). If you want to start implementing an auto gratuity policy via yourrestaurant POS system, there are a few things you need to know about both federal, and state laws before you get started.

In this article we'll cover the following:

• Automatic gratuities are technically considered service charges
• How do I report automatic gratuities to the IRS?
• Can restaurants charge automatic gratuity?
• Do customers have to pay automatic gratuity charges?
• What do other restaurant industry professionals say about auto gratuity?
• 4 alternatives to traditional restaurant tips and automatic gratuities
• How to implement a new service model

Keep the taxman happy with our free tax checklist

Use our free tax checklist to make sure you leave no box unticked come tax time

Download now

Automatic gratuities are technically considered service charges

It's important to understand that even though it's called a gratuity, as far as the Internal Revenue Service (IRS) in the US is concerned, automatic gratuity charges are labeled a service charge.

TheIRS explainsthe main elements that distinguish tips from service charges by explaining what it takes in order to qualify as a tip:

• The customer can't be required to pay it
• The customer gets to determine the amount
• It's not the result of negotiations or decided by policy
• The customer determines who (usually the server) gets to receive the payment

On the other hand, the IRS defines service charges as including:

• Automatic gratuity placed on large dining parties
• Banquet event fees
• Cruise trip packages
• Hotel room service charges
• Bottle service charges

How do I report automatic gratuities to the IRS?

Automatic gratuity fees are not reported the same way that tips are. Any amount of the fee given to an employee counts as non-tip wages and is subject to tax withholdings and other filing requirements.

However, many bills at restaurants have a standard line for a tip that appears on the check even if automatic gratuity is added, allowing guests to tip their server in addition to the automatic gratuity if they choose to.

Many automatic gratuities are around 15-18%, so those who prefer to tip 20% (or even 25%) will be happy with the opportunity to give their server the full amount they believe they deserve. Anything tipped to the server on top of the automatic gratuity is treated as the tipped wage that it is, and therefore should be reported the same way that any other tipped income would be.

Can restaurants charge automatic gratuity?

While all gratuity reporting is dictated by the IRS, (which means that every restaurant in the US is required to follow those rules) state laws can still have an impact on how automatic gratuity is carried out on the state level. It is legal to charge automatic gratuity on a federal level, but how it's reported on taxes will vary state by state.

California automatic gratuity law, for example, has its ownlaw about how service charges are taxed, but it's essentially the same thing as the federal laws (the California law came first, actually). If you're thinking about implementing one, have a look at your state laws anyway. It's better to be safe than sorry.

Do customers have to pay automatic gratuity charges?

You might remember the 2013 scandal when a pastor in Missouri refused to pay the automatic gratuity charge given to his table at Applebee's because it was a large group. Instead, he wrote on the check "I give God 10%-why do you get 18?" asForbes reported.

Unfortunately for the pastor, the law was not on her side. As a columnist at theBelleville News-Democratexplains in an article that addresses whether or not diners are required to pay automatic gratuity, "Restaurants are still free to charge a mandatory fee if they wish."

The article refers to the change that the IRS made to how automatic gratuity is reported. Before that, many restaurants were treating automatic gratuities as tips, but on January 1, 2014, that all changed, as outlined above. If you start implementing an automatic gratuity policy, there's a chance that some people might still think of the charges in pre-2014 terms.

If you're still on the fence about whether or not an automatic gratuity policy is right for your restaurant, consider asking your service staff. They'll certainly have opinions about what works best for them. Also,most POS systemsallow auto gratuity to be applied at the server's discretion, which is a great way to let them best serve their tables.

What do other restaurant industry professionals say about auto gratuity?

With changes to state minimum wages impacting restaurants across the country, many operators are shaking up the traditional tip model by experimenting with alternatives such as building tips into menu prices or charging service charges or fees in lieu of tips. "A lot of things are being tried," says Anthony Anton, president and CEO of theWashington Hospitality Association. "It's fair to say there's not really a winner emerging yet."

Like many restaurants,A Good Egg Dining Groupin Oklahoma City used to charge automatic gratuity on parties of eight or more. However, they ended the practice several years ago. "We thought if the customer didn't feel it was worth it, we're not putting it on [their bill]," says Gary Sander, vice president of accounting for A Good Egg Dining Group. In his experience, "Instead of adding an automatic 18% gratuity, the guests will put more than that on themselves."

However, the restaurant does charge a service fee for private parties and banquets, which is disclosed to the customer upfront. "We discuss ahead of time how many servers we would put on a party of that size and we charge a percentage of dollars per server," Sander says. "A certain number of people equals a certain number of servers. Sometimes they'll want more servers, or occasionally they'll add a bartender because they want the bar to move faster."

4 alternatives to traditional restaurant tips and automatic gratuities 1. Tip sharing

Eater reportsthat last spring, the federal government amended the Fair Labor Standards Act to allow tip sharing between tipped and non-tipped employees. This change may not mean much to customers, but for restaurants, it means that back-of-house staff in many states can now share in tips, provided the restaurant pays the full minimum wage to all employees (seven states, mainly on the west coast, actually require employers to pay the full minimum wage before tips). However, some states includingMassachusettsprohibit tip-sharing, even if all employees earn minimum wage.

2. Service charges

According to Anton, some restaurants now charge a service charge ranging from about 15-22%, which is meant to replace the tip. "In a service charge situation, the owner has complete control over the income," he says. "The only requirement is to disclose how it gets distributed."

3. Service fees

A service fee is similar to a service charge but it's generally a smaller percentage. "It's to offset the cost of the experience in a higher regulated city," Anton says.

4. Service-included model

Instead of adding a service fee or service charge to the bill, some restaurants simply build it into their menu prices, similar to many restaurants outside the US. For instance, whenNordic restaurant Agern openedin New York City's Grand Central Terminal in 2016, restaurateur Claus Meyer reportedly set prices high enough to cover a living wage, health insurance and paid parental leave for employees.

But this model doesn't always work because higher menu prices can alienate customers who aren't used to the service-included (sometimes called "hospitality-included") model. Meyer rolled back prices last year. The restaurant's website now states: "Agern is no longer a service included restaurant and our prices have lowered to reflect this change. We remain committed to carefully sourcing our ingredients and correctly compensating our dining room and culinary teams."

Unfortunately, there doesn't seem to be a good one-size-fits-all solution. "What's working well for a casual place doesn't work well for fine dining," Anton says.

How to implement a new service model

Communication with employees and customers is key when you're changing your business model. It's especially challenging to veer from traditional tipping when you cater to tourists or other populations who aren't regulars because then you're constantly having to explain an unfamiliar model.

"If you're in a situation where most of your customers are repeat customers, for the first month or so, have extra management hours available," Anton says. "Putting the servers in the middle of the conversation is not necessarily a win for the business. Having management be extra available and keeping the employee from that awkwardness has been a best practice as I've witnessed it."

Still, despite the growing pains, Anton predicts that this is where the industry is headed long term. "We know the model has to change," Anton says. "The question is, what's going to be the biggest win for [everyone]? It wouldn't surprise me if we stay in this model for a couple more years until we find that right answer."

Looking for a technology partner to help streamline operations and manage your finances? Talk to one of our experts about how Lightspeed can help.