Replacing tips with surcharge may break state law, says restaurant association

Good evening from the BDN Portland office on Congress Street. Today, banning tips at restaurants may be breaking the law; Portland’s city manager says he’ll be campaigning for Clinton; and with the election and Halloween approaching, things are getting strange indeed.

What we’re talking about

Two Portland restaurants, Bao Bao Dumpling House and soon-to-open Baristas and Bites, are preparing to jettison tips in favor of a surcharge. But a restaurant group worries this arrangement may break state law.

Maine Restaurant Association President Steve Hewins is advising his 1,000 members not to go down this route because he claims it violates a state statute on the use of service charges.

Though under federal law it’s allowed, “the issue is that in a banquet or club setting, businesses can add a service charge to the bill, as long as they indicate it is not going to the servers, but to the business. There is no provision in the law for a restaurant to do this in an individual customer setting,” said Hewins, who consulted with lawyers at Pierce Atwood on the issue.

The Maine Department of Labor is looking further at the statute, which Policy, Operations and Communication Director Julie Rabinowitz calls “a gray area.”

“At this point we caution restaurants or bars from making a determination one way or another,” she said in an email. “We plan on issuing guidance, but that may not be until after the election.

“Employers may only be looking at what is allowed under federal law, not realizing that state law differs (especially if they did similar practices in other states). Service charges and automatic gratuities are clearly allowable under the federal Fair Labor Standards Act,” she said.

Though Hewins is not criticizing these forward-thinking restaurateurs, he doesn’t want his members, who may be thinking similarly, to face penalties.

“Any service charge tacked onto a bill has to go to the server,” said Hewins, who received calls from members after Cara Stadler of Bao Bao announced her plan this week. Kathleen Pierce

In other news

City manager going door-to-door for Clinton in Philly — Portland City Manager Jon Jennings will be in Philadelphia at the end of next week to campaign for Democratic presidential candidate Hillary Clinton, he told BDN Portland.

The visit to the swing state will come as little surprise to those familiar with Jennings’ resume or office. The city manager served as a White House Fellow, acting assistant attorney general, and headed cabinet affairs under President Bill Clinton. He prominently displays a photograph of himself with Hillary Clinton behind his desk in City Hall.

Jennings said he’ll be knocking on doors and making calls in a last push to see her elected.

“I have deep loyalty to both President and Secretary Clinton,” said Jennings, adding that he hopes the titles with soon be president and president-elect. Jake Bleiberg

Downtown overrun by zombies  — Despite most of the city’s delicious brains being sheltered inside against the rain, Portland’s dead rose Thursday night for their Halloween tradition of dancing to Michael Jackson’s “Thriller.” This is the fourth-consecutive year that corpses have overcome rigor mortis to bust a move in Monument Square.

Coffee truck rally on Easter Prom — If early Halloween celebrations have you feeling like the undead on Sunday morning, consider heading out to the Eastern Promenade for a pick-me-up. The city’s coffee truck will be debuting new caffeinated beverages from 9:30 to 11:30 a.m. at the top of Cutter Street, Kathleen Pierce reports.

Noyes Street Fire Memorial — A memorial for the six people who died in the 2014 Noyes Street fire is planned for 1-4 p.m. Sunday, Oct. 30, in Portland’s Longfellow Park. Gregory Nisbet, the landlord of the property that burned two years ago, was recently acquitted after being charged with manslaughter for the deaths. Those killed in the blaze were David Bragdon Jr., 27, Ashley Thomas, 29, Nicole Finlay, 26, Steven Summers, 29, Maelisha Jackson, 23, and Chris Conlee, 25.

The Big Idea

FBI reopens investigation of Clinton email — With 11 days to go before the election, the FBI will reopen its probe into Hillary Clinton’s use of a private email server while secretary of state. FBI Director James Comey told Congress Friday that the agency recently “learned of the existence of emails that appear to be pertinent to the investigation.”

The new emails were uncovered through an investigation of whether former U.S. Rep Anthony Weiner, D-New York, sent illicit text messages to a 15-year-old girl, The New York Times reported Friday. Weiner is married to Huma Abedin, a top Clinton aide.



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