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Duff on Hospitality Law

Chinese Investment in the U.S. Hotel Industry

Posted in Hotels

Today’s blog post was contributed by Garvey Schubert Barer’s D.C. attorney and China Practice ChairRichard Gluck, based on original research by GSB’s Yi Zhang. His extensive knowledge of international business and collaboration between the U.S. and China is a great resource to the firm. We’re grateful to have him as a new author to the Duff on Hospitality blog. – Greg

We have all seen the growth of Chinese investment in the U.S. hotel industry, but this is only the tip of the Chinese investment iceberg in acquiring U.S. management expertise and technology to fuel the growth of the hospitality and hotel industry in China itself.

With the robust growth of its national economy and an emerging tourism industry, China’s hotel sector has experienced rapid development in recent years. Economic growth in China has led to a significant increase in domestic travel for business and pleasure.  In 2013, with 2.3 million hotel rooms, China’s total income from the national tourism industry was over $305 billion, an increase of approximately 20% against the previous year. However, only 15% of Chinese hotels have a brand affiliation; the market is highly fragmented and has vast product discrepancies.

China has identified tourism as a core growth engine, and many provincial government authorities plan to promote tourism by encouraging direct investment in real estate and the tourism industry. Chinese government development policy controls the investment priorities within China.  According to the government’s current (12th) Five-Year Plan period (2010-2015), fostering China’s tourism industry is a strategic pillar for the country’s efforts to establish a satisfactory modern service industry.  The authorities in charge of tourism at all levels, including the national tourism industry, have been directed by the government to “optimize the development environment in an all-around manner, vigorously expand the development opportunities, and accelerate the transformation of the industry.”

This rather general statement of government policy can have far reaching consequences.  Consider these numbers:  By 2015, China’s domestic tourism population should reach 3.3 billion, the number of inbound overnight tourists should reach 66.3 million, and the number of outbound overnight tourists should reach 83.75 million. The annual increase of the number of direct employees in the tourism industry should reach 700,000 while the total direct employment in the tourism industry should reach 15 million by 2015. According to the China National Tourism Administration, about 200,000 additional accommodation properties are expected to be built by 2015. Formats such as time-shares and vacation rentals are also being considered as ways to help sell existing properties.

China is still a developing country.  This accounts for enormous growth and accelerating growth in the hotel and hospitality sector.  But sustaining that growth and ensuring quality requires China to obtain management and technology know-how from more developed economies. China’s domestic market could benefit from the knowledge, skills, and experience that are brought back from overseas investments. Thus, as both the Chinese central government and local governments develop their plans, they are focusing on differentiation, internationalization, high-end brands, and major impact.  They are welcoming foreign investment by experienced operators, and providing incentives for major hospitality players such as land-price discounts, cash or tax incentives, and priority approval processes.

Many of the investments made by Chinese companies in the U.S. hotel industry are designed to follow Chinese government policy that encourages “going out” by Chinese companies to “bring back” management expertise and best practices from world class operators outside of China to leapfrog the development process.

China’s mid-market is likely to be the most exciting space over the next few years. The mid-segment is currently under-represented from a brand and investment-grade product perspective.  But with rising incomes and a wealthier travelling middle class, dramatic growth is expected.  For example, March 13th’s Wall Street Journal reported on how Dalian, a northern Chinese port city on the Yellow Sea with a population of about 5.9 million, demands historic 17th- and 18th-century French architectural elements, including French carved stone details such as niches, balconies, and keystones, along with slate roofs.

Roughly 170 Chinese cities have more than one million residents, but only four cities – Shanghai, Beijing, Guangzhou and Shenzhen – are considered “first-tier” in terms of size and per capita GDP.  To be considered in the second tier, a city should have a population of at least three million and a minimum GDP equivalent to USD 2,000 per capita. By this definition, more than 60 Chinese cities are qualified as second tier.  According to figures from the U.S. Commercial Service, 14 of China’s second-tier cities account for 54 percent of the total imports from the U.S.  The hotel market potential in these cities vast and growing.

Are you someone who seeks to work with Chinese investors in the U.S. hotel industry, or looking to find investment opportunities in China? Let us know your thoughts and we would be happy to answer any questions. Please contact me or Greg Duff.

Gender Expression in the Workplace: A Primer for Employers

Posted in Employment Law

As you may know, discrimination based on gender identity is unlawful in several states and many cities.  This includes both the State of Washington and the City of Seattle.  The Equal Employment Opportunity Commission (EEOC) has also taken the position that gender identity is protected under Title VII’s prohibition against discrimination based on sex.

While the antidiscrimination laws that protect transgendered individuals are not new, the subject of gender identity may be new to your managers.  This post is intended to provide a very basic understanding of transgender issues to get employers off on the right foot for appropriately, sensitively, and lawfully handling gender expression issues in the workplace.

Defining Basic Terms

Broadly speaking, “gender expression” refers to the way people manifest masculinity or femininity.  This can be through clothing, hair, makeup, overall appearance, speech, or other behavior or form of personal presentation.  “Gender identity” refers to a person’s innate sense of being male or female.  When someone is “transgender,” it essentially means their gender expression or identity is not consistent with societal expectations of someone with the same assigned sex at birth.  “Sexual orientation” is a person’s physical and/or emotional attraction to the same or the opposite gender.  Although sexual orientation and gender identity are often discussed together, they are not the same: a person’s gender identity has nothing to with their sexual preference, just the same as it has nothing to do with their age, race, or ethnicity.

Unlike the broader, umbrella term transgender (sometimes shortened to “trans”), “transsexual” specifically means someone who strongly feels that they do not embody the sex they were assigned at birth and has changed, or is in the process of changing, their sex to correspond to their sense of gender identity.  These individuals often pursue medical options, such as surgery or medication, in order to align their physical characteristics with the gender with which they identify.  When a person undergoes a process of medically, legally, and socially changing gender, this is known as a “transition.”  A transition may or may not involve a “gender reassignment” (also known as “gender confirmation”) surgery.

One thing many people do not realize is that not every transgendered person necessarily identifies as the opposite sex or has any desire to change his or her body.  In fact, a transgendered person may not identify as any gender at all but actually prefer to avoid restrictive notions of male or female altogether.

Tips for Being an Ally to Your Transgendered Employee

  • Use respectful language.  It can be difficult to know the proper terminology to use when talking to or about a transgendered employee.  A lot of terms are out there in the media, but not all of them are considered respectful.  Avoid stigmatizing words like tranny, transvestite, hermaphrodite, and sex-change surgery.
  • Learn and use the proper pronoun.  You should always call a trans person by his or her preferred name and chosen pronoun.  If you don’t know their preference, it’s okay to respectfully ask the employee which pronoun they prefer, or how you should refer to them.  If you do screw up a name or pronoun, just apologize and move on; making a fuss about it will likely be perceived as awkward or offensive.  Along the same lines, ensure that an employee who recently disclosed that they are transgender is provided an updated name tag, uniform, business cards, etc. and that they are entered into internal and external systems with their preferred name and gender.
  • Do not ask them if they have had gender reassignment surgery.  This is a very private subject and should be treated the same way you would treat any employee’s medical issue.  The same goes for hormone replacement therapy or any other medical treatment.  Just because someone is transgendered, it doesn’t mean they want to talk to their boss or coworkers about their body.
  • Keep it confidential.  Be aware that a trans person’s name or gender on their driver’s license or other state or federal documents may be incongruent with their appearance or preferred name and pronoun (for example, when a person named “Steven” on legal identification presents as female).  If this occurs, do not confront or “out” the transgendered employee.  It may be necessary to note the trans employee’s legal name in formal employment documentation, but there is no requirement to use that same name in the workplace environment  – think of how often people go by nicknames or middle names rather than their given first name.  An employee’s status as transgendered should only be shared with those with a clear need to know, unless the trans employee prefers otherwise.
  • Give the employee safe and private spaces.  A question that always comes up with regard to transgendered employees is which bathroom they should use.  Simply put, the transgendered individual should be permitted to use the restroom of the gender with which they identify.  This is true regardless of whether they have had gender reassignment surgery.  If another employee objects, that person should be reminded that this valued employee has the same right to use the restroom as all other employees.  As for locker rooms, the trans employee should be provided a private area to change (either within the regular public locker room or in a separate area) or be given a separate changing schedule.

As an employer, you are responsible to ensure that both your managers and your other employees are treating transgendered employees respectfully.  As with most things, the tone you set at the top will make a big difference in how the rest of your employees behave.  (It’s also something that judges and juries give a lot of weight to when considering whether a company is responsible for an alleged hostile work environment against a transgender employee).  That said, teaching respect and sensitivity to your employees is not necessarily easy or simple.  If you have a transitioning employee, you may want to schedule a transgender awareness and sensitivity training to educate employees about trans issues and teach them how to respectfully interact with their transgendered colleague.

If you are experiencing issues with gender expression in the workplace or have any questions on the subject, feel free to contact me or Greg.

Meeting Labor Numbers – Working Off the Clock Wage Claims

Posted in Employment Law

It is no secret that wage and hour class actions are among the “hot topic” law suits that are on the increase.  Like too many people, when I hear “class action” my heart starts to race, beads of sweat break out on my forehead and I start to feel sick to my stomach…and I don’t even own the business that is named in the suit.  I just know the wage and hour cases are time intensive and expensive to defend.  Wage and hour class actions often deal with the tried and true wage claims, misclassification of exempt employees as well as the overtime claims that go hand in hand with the misclassification.  However, occasionally one comes along that makes you stop and think.

Last week one such action was brought in Alabama against a franchisee of a fast food restaurant.  This particular lawsuit highlights the challenge of balancing the need to manage labor costs and the long term cost of doing so in an inefficient (or illegal) manner.

The restaurant industry is not a high margin industry, so it is tempting to cut corners where you can. For example, if you open early in the morning, you want to have everything ready to go as that first bleary eyed customer stumbles in looking for their first jolt of caffeine.  The problem is if you don’t have sufficient prep work done, having the customers show up before your staff is totally prepared can result in you being in the weeds faster than you ever anticipated.  The problem is the cash needed to support the labor isn’t there if the employees do the prep work before the doors are open.  If this recent Alabama lawsuit is to be believed, the employees were asked to show up for work at least a half hour before the business opened to the public – but they could not clock in until there was at least $40 on the till.  This essentially means all prep work was done off the clock – a fatal mistake under the wage and hour laws.

The Fair Labor Standards Act (FLSA) requires employers to pay for all hours worked to their benefit.  This means simple things like turning on the kitchen equipment sufficiently early to ensure it is ready to go when the orders start flowing.  This means getting the mise en place completed before the day starts.  Not paying for this time means you have employees working off the clock.

Some work places know that they are requiring employees to work off the clock, such as the alleged violations in this new lawsuit.  However, other work environments also create this problem, perhaps unintentionally.

Employer A: This employer limits employees’ ability to clock in while still expecting an unrealistic amount of work to get completed within the “working day”.  This leaves employees feeling like they are “bad” or “wrong” because they could not get everything done that was expected.  Their solution is to clock out but keep working so they can catch up.  This helps them appear as the “shining star” employee rather than the poor performer.  No matter the motivation, this behavior is a problem.

Employer B: This employer creates an environment where employees feel so much a member of the team that they clock out and work off the clock (without anyone knowing) so that they feel like they are “helping” the business succeed.  Here the good intentions of the employee still create liability for the company.

No matter the nature of the work environment, off the clock work is ultimately more expensive than simply managing your work force and keeping a realistic expectation on your labor numbers.  If a wage and hour suit is brought, the employer could be responsible for paying for all the off the clock hours worked (for the last six years), the overtime pay that would have been accumulated but for the off the clock time (for the last two, possibly three, years), as well as an equal amount in liquidated damages.  This is just under the FLSA.  Add any state law violations and penalties and the amounts can continue to climb.  You may even be liable for paying the attorney fees of the plaintiffs.  All of this is on top of the emotional strain and costs to the company, not to mention the cost of paying attorneys to defend the claim.

It is very important to manage your labor numbers.  It is even more important to manage your workforce and make sure that you aren’t creating an environment that either consciously or unconsciously creates a situation that employees feel compelled to work off the clock.  If you wonder how to manage your hours, or if you need an audit of your wage and hour practices to make sure there is not exposure to such claims, members of our Labor and Employment team are available to help.

Portland Convention Center Hotel Moves a Step Closer

Posted in Hotels

On Monday March 3, 2014, a Multnomah County Circuit judge agreed with the Multnomah County Elections Director and brought a new hotel at the Oregon Convention Center one step closer to fruition.  A Convention Center Hotel has long been desired by a variety of tourism and economic development interests who argue that such hotel will allow Portland to host larger events at the Convention Center.  As long as those supporters have been around, so too have opponents of such a hotel, who argue that the economic benefits of such a hotel are overstated and may also harm their economic interests and should not qualify for public subsidies.  In 2013, Metro and other local jurisdictions seemed to be coalescing around a plan that would bring the hotel to the Convention Center, but one aspect of the plan ran into a snag and ended up in court.

In December of 2013, Multnomah County amended its code to allow tourism tax revenue to be expended in support of “the construction of a hotel proximate to the Oregon Convention Center.”  Opponents of the hotel sought to refer that change to an election, but the County Elections Division denied certification of the referendum petition because, in the view of the County elections Division, the code amendment was an “executive or administrative” matter.  That classification is important, because under a long line of Oregon Supreme Court cases, only “legislative” matters are subject to referral and administrative or executive matters are not subject to a vote.

The hotel opponents challenged that denial, arguing that the code amendment was legislative.  On March 3, 2014, Judge Eric Bloch sided with the County and found, among other things, that the matter was administrative and not subject to referral to the voters.  It is unlikely that this is the last word on the hotel, but at least one hurdle has been cleared.

WaterSense H2Otel Challenge

Posted in Hotels

On February 5, 2014 the U.S. Environmental Protection Agency launched the “WaterSense H2Otel” challenge, a program encouraging hotels to implement best management practices for reducing their water usage.  As part of “WaterSense H2Otel,” the EPA is providing technical assistance using webinars and other forms of outreach including case studies on the “lessons learned” from other hotels’ efforts to reduce water usage.  The challenge is designed for any individual hotel with five or more rooms, as well as hotel management groups and chains.  EPA explains that WaterSense H2Otel is part of the agency’s broader (multi-sector) “WaterSense” program to promote water-efficient products, services and practices in an effort to address ever increasing demand for water in the U.S.

In coming weeks EPA will present a series of educational webinars on the WaterSense H2Otel challenge.  The webinar dates and topics are as follows (each webinar is scheduled from 2:00 to 3:00 p.m. Eastern time):

  • March 6 – Assess, Track, Realize Paybacks
  • March 12 – Take the Plunge: The WaterSense H2Otel Challenge (this session will repeat the webinar EPA presented on February 27)
  • March 27 – Washing 101: A Plumbing and Laundry Efficiency Primer

For additional information, please contact Scott DuBoff, Chair of Garvey Schubert Barer’s Environmental Practice Group.  Training materials and webinar registration are available hereRecycle for Clean Water

California Adds “Do Not Track” Disclosure Requirement to the California Online Privacy Protection Act

Posted in Data Privacy

Our first of many anticipated privacy related posts comes from Colleen Hannigan of our Seattle office. Colleen is one of the newest members of our Hospitality, Travel and Tourism Practice and brings with her a wealth of privacy experience from Harvard Law School and her time spent at Berkman Center for Internet and Society. Welcome, Colleen, we look forward to many more posts in the future. – Greg 

In September, 2013, Governor Jerry Brown of California signed into law Assembly Bill No. 370, which amends the California Online Privacy Protection Act (CalOPPA) to require that website and mobile app operators disclose whether they honor web browser “Do Not Track” signals. AB 370 took effect on January 1, 2014.


CalOPPA has, since 2003, required operators of commercial websites or online services that collect personally identifiable information (PII) from California consumers (including, most notably, guests and customers from California) through the Internet to post, conspicuously, their privacy policies. PII is “identifiable information about an individual consumer collected online by the operator from that individual and maintained by the operator in an accessible form.” PII includes, but is not limited to, first and last names, home or other physical addresses, email addresses, telephone numbers, social security numbers, and any other identifier that permits the online or physical contacting of a specific individual. PII also includes “[i]nformation concerning a user that the Web site or online service collects online from the user and maintains in personally identifiable form in combination with an identifier described in this subdivision.”

CalOPPA requires privacy policies to make certain specific disclosures regarding how the website or app operator collects, uses, and discloses users’ PII. For example, operators must disclose the type(s) of data they collect and the categories of third parties with whom that information is shared, if any. In addition, privacy policies must provide an effective date, information regarding how a consumer can access and/or request changes to his or her PII, and a description of how the operator will notify consumers of policy changes.

Operators are in violation of CalOPPA if they knowingly and willfully, or negligently and materially fail to comply with either the law or the operator’s own privacy policy. Violators can incur a civil fine of up to $2,500 per violation. Importantly, the California Attorney General maintains that each non-compliant mobile app download constitutes a violation, which may trigger the fine.

Do Not Track and AB 370

Do Not Track (DNT) mechanisms typically are small pieces of code, similar to cookies, that signal to websites and mobile applications that the user does not want his or her website or app activities to be tracked. Most Internet browsers, including Mozilla Firefox, Google Chrome, Microsoft Internet Explorer, and Apple Safari, allow users to choose whether to have the browser send out DNT signals. If a website that honors DNT signals receives such a signal, the browser blocks the website from collecting PII from that user.

AB 370 amends CalOPPA to require covered operators to update their privacy policies to include new disclosures. Specifically, the amended Act now requires that operators disclose:

  • How they respond to DNT signals or other mechanisms that allow consumers to choose whether and how PII about their online activities is collected over time, both by the operator and across third-party websites or online services; and
  • Whether third parties may collect such PII over time and across different websites when the consumer uses the operator’s website or service. However, the operator need not disclose the identities of such third parties.

AB 370 does not require website and app operators to obey DNT signals—it merely requires that operators disclose whether they obey or do not obey such signals. Operators may satisfy this requirement by either, if they do not respond to DNT signals, stating as much in their privacy policies, or, if they do respond to DNT signals, including in their policies a description of the program or protocol they use in responding or a clear and conspicuous hyperlink to an online location containing such a description.


Hoteliers and restaurateurs that operate websites, mobile applications, or other online services that collect personal information from California residents should familiarize themselves with both CalOPPA and AB 370. In addition, operators should review their websites and apps to determine how they respond to DNT signals and the tracking methods they use, as well as whether third parties (e.g. vendors or suppliers) conduct tracking activities on or using their websites or apps. Hoteliers and restaurateurs should then revise or update their privacy policies as needed.

Hoteliers and restaurateurs should be aware that other state laws and/or federal laws such as the Healthcare Information Portability and Accountability Act (HIPPA) or the Children’s Online Privacy Protection Act (COPPA) may also apply, depending on what information the Hotelier or restaurateur collects and from whom.

Please contact me or Greg if you have further questions regarding CalOPPA or any other privacy matter.

Carbon Monoxide: Protecting Your Guests and Protecting Yourself

Posted in Hotels

Today’s blog is a litigation update on the devastating North Carolina hotel carbon monoxide leak. Please make sure that your business and hotel guests are protected. Thank you to Roger Hillman, GSB Hospitality Team member and Litigation Group Chair, for the post.  - Greg

The recent deaths of three hotel guests (a husband and wife from Longview, WA, and an eleven year old boy) in North Carolina from lethal doses of carbon monoxide have sparked increased awareness of the risk of this exposure to hotel guests.   This incident has also resulted in civil liability exposure, legislation, and even criminal charges.  Over the past three years, eight people have died, and over 170 have been made ill from carbon monoxide poisoning hotels in the U.S.  In addition, detection of carbon monoxide leaks has resulted in numerous evacuations of hotels, effecting thousands of guests.

Carbon monoxide is a colorless, odorless and tasteless toxic gas emanating from fuel burning devices such as furnaces, boilers, air conditioning units, laundry dryers, and water and swimming pool heaters.  Carbon monoxide detectors, which retail for between $20 and $30 dollars, can alert hotel guests and operators of the presence of this gas before it reaches dangerous levels.  The new North Carolina statute requires such detectors in facilities that contain equipment that has a danger of carbon monoxide leakage, as well as in hotel rooms which adjoin, or are above or below such facilities.  Washington has a similar statute, which, while requiring carbon monoxide detectors in hotel/motel rooms, exempts rooms that do not contain or are not adjacent to units which contain fuel-burning appliances or fireplaces.

The families of the deceased in the North Carolina incidents have instituted litigation against the involved hotel.  In addition, the general manager of the hotel has been indicted for three counts of involuntary manslaughter.  The basis for the criminal charges is the unlicensed, unpermitted and, therefore uninspected, replacement of the pool heating system with used equipment which it was determined emitted dangerous levels of carbon monoxide.  The potential civil liability stems from the same facts, as well as that the first incident resulted in no corrective action which would have prevented the death of the child in the second incident.

The publicity surrounding the North Carolina incident and the ensuing legal steps has heightened the awareness of this risk.  Just as many of your guests now arrive with black lights to scan for bed bug infestation, you can expect inquiries as to the presence of carbon monoxide detectors in your accommodations.  Even though not yet required in all rooms, in all locations, the installation of carbon monoxide detectors is a small price to pay for your and your guests’ peace of mind.

Americas Lodging Investment Summit 2014

Posted in Conference Notes

It seems fitting that my first post of 2014 would come from the year’s first major industry conference – the Americas Lodging Investment Summit (ALIS) held each January in Los Angeles. As expected, this year’s Summit set near record attendance (nearly 2,600 registered attendees) and its attendees were brimming with confidence.

For me, however, the highlight of this year’s Summit occurred on Monday a few blocks away.  On Monday afternoon, Thayer Ventures hosted its third annual meeting focusing on innovation (and investing in innovation) in the travel industry.  This year’s meeting included a presentation by Skift CEO and founder, Rafat Ali, a panel discussion by the CEOs of each of Thayer’s portfolio companies, and a final presentation by three well-known investors in the travel technology space.

Of the three presentations, Rafat Ali’s was the most noteworthy. Rafat provided his predictions for the travel industry in 2014, including Rafat’s top travel trends:

1.  The Rise of the (Digitally Empowered) Silent Traveler
2.  Curation
3.  Visuals – the New Language in Travel
4.  The Rise of Locality
5.  The Rise of the Chinese Independent Traveler
6.  Low Cost Carriers Eat the World
7.  The Rise of the Sharing Economy
8.  Substandard Travel Start-ups
9.  Mobile Is Not a Trend – It Is Everywhere

If you are not a regular reader of Rafat’s many websites, blogs or tweets, I strongly encourage you to become one.

The discussion among Thayer’s fund companies that followed Rafat’s presentation, included the CEOs from Adara Media, Duetto, Hipmunk, HotelMe, Posiq, tripBAM, and others, and focused on many of the trends identified by Rafat as well as distribution, the underserved (and often ignored) business travel market, millennials’ demand for personalization, and each participant’s thoughts on what it takes to truly become a “disrupter” within the travel industry. Nearly all of the participants had strong feelings about all or nearly all of the panel’s topics.

Thayer’s own Jeff Jackson moderated the final presentation by representatives of Gideon Hixon Fund, Altimeter Capital and the Priceline Group.  Among their many observations, they each acknowledged seeing unprecedented numbers of new start-ups in the travel and technology industry.

Returning to the Summit on Monday evening and overhearing the many lobby conversations about interest rates, discount rates, and other real property investment metrics and attributes, I was reminded of the growing chasm between those who own and operate hotels and those who are using technology to reach, communicate with, and anticipate the needs of, those who stay in those same hotels.  More on my observations on this issue in future blog posts.

Mandatory Tipping – When is a Tip Not a Tip?

Posted in Food and Beverage

I’m pleased to introduce another guest author from local accounting firm Clark Nuber P.S.  Julie Eisenhauer is an audit and accounting principal specializing in the hospitality industry.  We’re grateful that Julie has offered to share her experience and knowledge with our readers.  Welcome, Julie, and thank you for today’s post on this important revenue ruling. – Greg 

IRS Guidance Effective January 1, 2014

In a recent Revenue Ruling that took effect on January 1, 2014, the IRS provided guidance on the difference between tips and service charges.  This guidance may cause accounting for mandatory tips on large dinner parties or banquet bills to be more costly and complicated.

Now is the time for restaurateurs and hoteliers to reevaluate their policy for mandatory tips.  Revisions to the policy may be necessary after considering the IRS’s definition of a tip vs. a service charge, the tax implications involved, as well as accounting and reporting requirements.

Tips vs. Service Charge (i.e., Wages)

A hotel or restaurant classifying a payment as a “tip” doesn’t necessarily make it so.  The IRS may determine through its independent review of facts and circumstances that the payment is actually a service charge.  If the service charge is distributed to the employee in the course of employment, the service charge is considered “wages” for FICA tax and other purposes.

The Revenue Ruling lists the factors that the IRS will consider when evaluating whether a payment is a tip or service charge.  To be considered a tip, the following must be present:

  • The payment is made free from compulsion
  • The customer has the unrestricted right to determine the amount
  • The payment is not the subject of negotiation or dictated by employer’s policy
  • The customer has the right to determine who receives the payment

The Revenue Ruling clarifies that automatic or mandatory tips are service charges (i.e., wages) and cannot be treated as tips due to the fact that the customer is restricted from determining the amount of the tip and did not make the payment free from compulsion.

Tax Implications 

So why does it matter if the customer payment is defined by the IRS as a service charge vs. a tip?

If the payment is a tip, the current law continues to apply, making it the responsibility of the employee to report all tips received in any calendar month to their employer by the 10th of the following month.  The employer is required to pay FICA tax (Social Security and Medicare) on these tips.  The good news is that a Washington State employer is allowed a FICA Tip Credit for all FICA tax paid on its employee tip income.

Like tip payments, service charge payments distributed to an employee for their services (wages), are subject to employer FICA tax obligations.  However, since these payments are not tips, any FICA tax paid on the service charge would not be subject to the FICA Tip Credit.

Restaurant tip on a checkered background.Under Washington’s State Excise Tax Rules, tips representing donations or gifts by customers that are clearly voluntary are not part of gross revenue subject to tax.  However, mandatory tips added to the sales price by the seller – whether labeled service charges, tips, gratuities or otherwise – must be included in the gross sales price and are subject to both the retailing business and occupation tax and retail sales tax.  Consistent with the Washington State Excise Tax Rules, mandatory tips are included with gross revenue subject to income tax for Federal tax reporting purposes, while any related payment to the employee is a deduction against income.


To meet the definition of a tip by the IRS and Washington State, restaurants and hotels should consider revising their policy for adding mandatory tips on large parties or banquet bills and instead include sample calculations of tip amounts on the bottom of its receipts provided to customers.  This will demonstrate the customer’s unrestricted right to determine the amount of the tip and that it was made free from compulsion.

If the restaurant or hotel continues their policy of adding mandatory tips to large dinner party or banquet bills, special care should be taken to make sure the accounting system is correctly accounting for these payments as gross revenue when the payment is received and wages to employees when distributed to them.  These payments should be segregated from tip payments in order to simplify both State and Federal income tax reporting requirements.

Restaurateurs or hoteliers  should evaluate the risks and rewards of adding mandatory tips to customer bills.  Is the tax obligation or the reduction in the FICA Tip Credit significant?  Is accounting and reporting of service charges as wages cumbersome? Are you including the statutorily required guest and customer disclosures? Taking the time to evaluate your policy now may help you avoid possible IRS scrutiny later.

If you have questions about this important ruling and its application to your hotel or restaurant please contact me or Greg.