Dear PAO,

I work as a dishwasher in a restaurant, and it came to my attention that the restaurant has been collecting a certain percentage of the service charge from all its customers. As such, I just wanted to ask if I am also entitled to the service charge being collected by the restaurant, even if I am a dishwasher and not a waiter.

Luis

Dear Luis,

Please be informed of Section 1, Article 96 of the Labor Code, as amended, which states:

“Art. 96. Service Charges. – All service charges collected by hotels, restaurants and similar establishments shall be distributed completely and equally among the covered workers except managerial employees.

“In the event that the minimum wage is increased by law of wage order, service charges paid to the covered employees shall not be considered in determining the employer’s compliance with the increased minimum age.

“To facilitate resolution of any dispute between the management and the employees on the distribution of service charges, a grievance mechanism shall be established. If no grievance mechanism is established or if inadequate, the grievance shall be referred to the regional office of the Department of Labor and Employment which has jurisdiction over the workplace for conciliation. Xxx” (Emphasis ours)

Based on the above-stated law, all establishments collecting service charges, such as hotels and restaurants, are mandated to distribute them completely and equally to all their employees, except to those holding managerial positions. Thus, all workers directly employed by the covered establishment, irrespective of position, designation, or employment status, including dishwashers, and regardless of the method by which their wages are paid, shall receive a just share from the pooled service charges that the said establishment has collected. Covered employees refer to all employees, except managerial employees as defined in the law, and those under the direct employ of the covered establishment.

In your case, since your work as a dishwasher is not classified as managerial in nature or a managerial position, then you are entitled to a proportional share of the service charges that the restaurant you are working for has collected.

This opinion is solely based on the facts you have narrated and our appreciation of the same. Our opinion may vary when the facts are changed or elaborated on. We hope that we were able to enlighten you on the matter.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to [email protected]