June 30, 2022

Saluti Law Medi

Rule it with System

Anti-tipping law, first in the nation, takes effect in Washington state at midnight on June 8, 1909.

On June 8, 1909, at midnight, a statute outlawing tipping in the state of Washington takes effect, 90 days after the March 11 adjournment of the legislature. The first measure of its type in the United States, the law was passed by the state Senate on March 1, 1909, by the House of Representatives on March 4, 1909, and approved by the governor on March 22. Both giving and receiving “gratuities” were deemed misdemeanors. The prohibition was essentially unenforceable, largely ignored, and repealed in 1913. Nonetheless, during its brief time on the books it reflected the influence of a nationwide campaign again tipping that was widely supported by Progressives and the labor movement.

Legal Overreach

In 1909 the Washington legislature enacted a major revision of the state’s criminal code. A parenthetical at the beginning of Chapter 249 of the 1909 session laws noted that “The Criminal Code was taken largely from New York and Minnesota.” Not the anti-tipping law, however; neither those states nor any other had outlawed tipping at the time. Washington’s statute was the first, a home-grown creation that would later be copied by several other states.

The legislation was strongly supported by the state’s Progressive Movement, which had achieved substantial political power and would accomplish much good, including winning woman suffrage in 1910, a decade before it became the law of the land. But the movement had a tendency for moralistic preachiness, and was an aggressive advocate for legislation banning things that were not widely perceived as evil, or even wrong. The disastrous prohibition of alcohol, imposed under state law five years before it was enshrined in the U.S. Constitution, is perhaps the most telling example.

The language criminalizing the receiving or giving of a tip (“gratuity,” in the wording of the statute) comprised two short sentence on the 139th page of the revised 140-page Criminal Code, in a catchall section titled “Miscellaneous Cases”:

SEC. 439. Every employe [sic] of a public house or public service corporation who shall solicit or receive any gratuity from any guest shall be guilty of a misdemeanor.

 SEC. 440. Every person giving any such gratuity mentioned in section 439 shall be guilty of a misdemeanor. (1909 Wash. Laws ch. 249, sec. 439, 440)

Both before and after the 1909 passage of this law, what were viewed as deleterious moral and social implications of the practice were bugbears of tipping opponents nationwide. Eleven days after the law came into effect, the Seattle Post-Intelligencer unctuously explained why tipping was an unacceptable practice, while grieving over the need for legislation to outlaw it. The remarkably tone-deaf editorial ignored the fact that in 1909, 24 years before passage of the first federal law setting a minimum wage, workers were largely at the mercy of their employers:

“Men who rely on tips to support their families, instead of relying upon the value of the services they render the man who employs them, are going through life with the wrong idea.

“What is a tip? If a tip is a mere gratuity, it is beggarly for a man to accept it. If it is a reward for good service, it can be said that the waiters ought to give good service without exacting extra pay, and if it is a reward for the waiter’s special effort to give his patron a little [of] the best of it, the acceptance of a tip is indefensible on moral grounds, for the waiter who will given [sic] one patron the best of it, will give either his employer or some other patron the worst of it.

“Of course legislating against tips is at best rather freakish and it ought not be necessary; but giving and receiving tips has posed a problem of some importance, and the lawmakers of this state simply undertook to solve it. It isn’t a good practice to accept tips, and if waiters can’t make a living without it, they will probably find it to their moral advantage to enter into some other field of employment” (“Tips and the Law”).

This attitude, which evidenced a deep distrust of people in service industries, was hardly new. More than 30 years earlier, the even-then august The New York Times opined on the evil of tipping of waiters: “By tipping him in this way you are corrupting his honesty, and harming his manliness, for he will be sure in the end to keep his good serving for those who pay, and turn a cold shoulder to the economical” (“The Corrosive Nature of Tips”).

The Seattle Times took a more lighthearted tack, one that rather gently criticized legislative attempts to criminalize certain widespread behaviors, particularly those relating to alcohol. In a July 2, 1909, editorial titled “You Aren’t Safe Without a Copy of the Code,” it bemoaned the sheer number of things that had become illegal at the stroke of midnight on June 8 that year:

“If you could take the trouble to read over the new code, no matter how difficult it may be to find one, you will discover that  cigarettes, tipping, and other little clauses that preclude you from indulging in a few of the luxuries of life, are only mere instances of the calamity that is nicely concealed in the closing pages of the code …” (“You Aren’t Safe …”).

Law or no law, tipping in Washington continued unabated, and as could have been predicted, the statute proved unenforceable. Up until the late 1960s, the state legislature met only every two years. The anti-tipping law survived the 1911 session, but was repealed in 1913.

The Origins of Tipping

There are different theories on the origin of tipping, some more persuasive than others. A rather tenuous one claims that the practice has its roots in the well-known Parable of the Good Samaritan from the Bible’s Book of Luke. Another and more credible explanation traces the practice to England’s feudal system of the Middle Ages, when masters would make small monetary gifts to otherwise unpaid servants for the good performance of their duties. This theory holds that when the feudal system ended, the custom continued, not between masters and servants, but rather between customers and those selling their services. Even the origin of the word “tip” is speculative; only anecdotal evidence supports the oft-repeated claim that it first appeared in the late 1700s when a coffeehouse in Britain put out a bowl on which was printed T.I.P., an acronym for “To Insure Promptitude.”

The inception and eventual wide spread of tipping in America tells a much darker story. Granting that tipping probably originated in feudal Europe, its benign purpose was perverted when it appeared in this country, and a strong (although not universally accepted) argument has been made that the custom of tipping in America has “a legacy of slavery and racism” (“The Land of the Fee”).

That argument is this: When the Civil War ended in April 1865, millions of former Black slaves were legally free, but most were destitute and with few options for earning a living. This made them easy prey for those seeking cheap, even essentially free, labor. Many slaves, particularly “house slaves,” had been taught how to please those they served through what slave owners called “seasoning.” As one account puts it, enslaved male house slaves had to learn “the skills required of a butler, which involved interacting with whites in a manner that was discreet but knowledgeable of the social status of visitors and the routines of the house” (“Enslaved House Servants”). Women house slaves performed the range of domestic, even maternal, duties — cooking, cleaning, serving, dressing, sewing, helping raise and even wet-nursing their white masters’ children.

One oft-cited example of the exploitation of former slaves was the Pullman Company. Shortly before the Civil War broke out, George M. Pullman (1831-1897) of Chicago began to remodel passenger-coach railroad cars, and by 1869 his company built, owned, and operated luxurious sleeping cars, dining cars, and parlor cars on almost all American railroads. These were supervised by white conductors but staffed entirely by African American porters, who were required to work 400 hours a month or 11,000 rail miles — whichever came first — to receive their minimal full pay. According to one civil rights commentator:

“You might not think of tipping as a legacy of slavery, but it has a far more racialized history than most Americans realize. Tipping originated in feudal Europe and was imported back to the United States by American travelers … The practice spread throughout the country after the Civil War as U.S. employers, largely in the hospitality sector, looked for ways to avoid paying formerly enslaved workers.

“One of the most notorious examples comes from the Pullman Company, which hired newly freed African American men as porters. Rather than paying them a real wage, Pullman provided the black porters with just a meager pittance, forcing them to rely on tips from their white clientele for most of their pay” (“The Racist History …”).

It should be noted that what began as exploitation eventually led to civil rights and labor milestones. By the 1920s there were well more than 20,000 African-Americans working as Pullman porters and in related rail jobs, the largest category of Black labor in the United States. In 1925 they formed a union, the Brotherhood of Sleeping Car Porters (BSCP), headed by A. Philip Randolph (1889-1979). It took 10 years, but the Pullman Company was eventually forced to the negotiating table, and on August 25, 1937, the BSCP was recognized as the official union of the Pullman porters. It was the first time in American history that a Black union had achieved such a victory, and it is credited with laying the foundation for the development of an African-American middle class and stimulating the ongoing Great Migration of former slaves and their descendants from the southern states to northern cities.

Qui Bono?

However it started, tipping has always been controversial in America, the subject of almost hysterical debate. A popular book first published in 1916 has the no-nonsense title The Itching Palm and is a 173-page polemic, the primary tone and substance of which is succinctly stated on the first page of the first chapter:

“Tipping is the modern form of Flunkyism. Flunkyism may be defined as a willingness to be servile for a consideration. It is democracy’s deadly foe. The two ideas cannot live together except in false peace. The tendency always is for one to sap the strength of the other” (The Itching Palm, 7).

The book, which has been printed in multiple editions and is readily available today, does get one thing right: It anticipates what the ground for debate over tipping would become in more recent times. A chapter entitled “The Employer Viewpoint” opens this way: “‘We face a condition, not a theory,’ assert those employers who defend their adaptation of the tipping custom. ‘The public seems determined to bestow gratuities, and if we paid full wages in addition, our employees would be the highest paid workers in the world” (The Itching Palm, 88).

Clearly not, but such was the overheated and often simplistic nature of the debate back then.

Times change, and in the twenty-first century most criticisms of tipping centers on the proposition that, far from being a benefit to those receiving the tips, the custom is in fact a method of transfering the cost of labor from employers to customers. This theory finds significant support in the minimum-wage laws of the federal government and more than a few states.

The federal minimum wage has remained at $7.25 per hour since 2009, despite frequent attempts by Democratic legislators to raise it. However, anyone receiving more than $30 in tips per month is classified as a “Tipped Employee,” and may be paid as little as $2.13 an hour, so long as tips received brings the total compensation up to the $7.25 minimum wage. Thus, under federal law,  $5.12 cents of an employer’s hourly obligation to his or her employees is effectively shifted to customers.  

Federal law dictates only a nationally required minimum wage; state laws must meet that minimum, but otherwise present a confusing welter of different formulas. As of 2022, 17 states, mostly in the South, followed the federal minimum wage of $2.13 cents an hour for tipped employees, with the employers allowed a “tip credit” to bring the pay up to the legal minimum. The minimum wage and tip-credit laws of other states vary widely. Perhaps ironically, the minimum wage for tipped employees in Washington, the first state to pass anti-tipping legislation, is now the second-highest in the nation at $14.49 per hour, second only to California’s $15. Employers must pay the full wage, with no tip credit allowed.

Not surprisingly, employers in industries where tipping is most common generally support the tip-credit system, because it shifts the burden of meeting the largest portion of the required minimum wage onto the wallets of customers. Many labor unions and many progressives oppose tipping, and for precisely the same reason. One possible outcome of the debate may follow the example of France, one of the European countries in which the custom of tipping began in the early nineteenth century, to be later brought to North America. In France, tipping has become a slowly vanishing practice, at least in food-service establishments, in which servers in get salaries, paid vacations, health care, and living (if not overly generous) wages. French law requires a 15-percent surcharge on every bill in such establishments, and tipping, while not prohibited, is not routinely expected. As a travelers-advice website explains:

“In 1985 the French government passed a law requiring all employees to be paid at least the minimum wage (known as le SMIC in France), thus outlawing the system of depending on clients to essentially pay servers’ salaries. To make sure the French clients understood this, all menus state ‘15% service compris’ (which also justified restaurants raising their prices to cover that). So, no, the server doesn’t take home 15% of your bill in cash at the end of their shift, it simply means their salary is covered. French people still leave a small tip if they feel like it, but they know it’s “extra” for the server” (“The Etiquette of Tipping …”). 

This is a debate that will not end soon in the United States, where states are free to write their own wage laws so long as workers receive at least the federal minimum wage, however it is calculated. There are influential proponents both for and against the continuation of the custom of tipping, and resolution seems unlikely, at least until the federal government increases the mandatory minimum wage substantially. Until then, with little common ground between opponents and defenders of gratuities, it seems inevitable that the wage laws of the 50 states will remain a confusing, disparate, and inequitable patchwork.



Sources:

“Criminal Code” 1909 Wash. Laws, ch. 249, secs. 439, 440; Rae L. Needleman, “Tipping as a Factor in Wages,” Monthly Labor Review, Vol. 45, No. 6 (December 1937), pp. 1303-1322; Rund Abdelfatah, Ramtin Arablouei, et al., “The Land of the Fee,” (March 25, 2021) National Public Radio website accessed May 19, 2022 (https://www.npr.org/2021/03/22/980047710/the-land-of-the-fee); Nina Martyris, “When Tipping Was Considered Deeply Un-American,” November 30, 2015, National Public Radio website accessed May 18, 2022 (https://www.npr.org/sections/thesalt/2015/11/30/457125740/when-tipping-was-considered-deeply-un-american); William Rufus Scott, The Itching Palm (Philadelphia: The Penn Publishing Company, 1916) 7, 88; “Enslaved House Servants,” Encyclopedia Virginia website accessed May 19, 2022 (https://encyclopediavirginia.org/entries/enslaved-house-servants/); Rev. Dr. William J. Barber II, “The Racist History of Tipping,” POLITICO website accessed May 21, 2022 (https://www.politico.com/magazine/story/2019/07/17/william-barber-tipping-racist-past-227361/); Lenny DeFranco, March 3, 2014, “A Progressive Argument For Putting an End to Tipping,” MIC website accessed May 20, 2022 (https://www.mic.com/articles/61789/a-progressive-argument-for-putting-an-end-to-tipping); The Corrosive Nature of Tips,” The New York Times, January 28, 1877, p. 6;
“Tips and the Law,” Seattle Post-Intelligencer, June 19, 1909, p. 6; “You Aren’t Safe Without a Copy of the Code,” The Seattle Times, July 2, 1909, p. 16; “Minimum Wage for Tipped Employees by State 2022,” April 22, 2022, Paycor website accessed May 22, 2022 (https://www.paycor.com/resource-center/articles/minimum-wage-tipped-employees-by-state/); “Tips,” U.S. Department of Labor website accessed May 22, 2022 (https://www.dol.gov/general/topic/wages/wagestips); “Tipping Etiquette in France,” Secrets of Paris website accessed May 22, 2022 (https://secretsofparis.com/practical/money-matters/tipping/).









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