A-3015, OCTOBER 25, 1924, 4 COMP. GEN. 410

A-3015: Oct 25, 1924

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AN EMPLOYEE OF THE UNITED STATES TARIFF COMMISSION IS ENTITLED TO REIMBURSEMENT FOR FEES PAID TO STATION PORTERS IN GEORGIA AND TENNESSEE WHILE IN A TRAVEL STATUS. WHICH STATES HAVE ANTITIPPING LAWS. IN SUPPORT OF HIS REQUEST FOR REVIEW HE SUBMITS THE PROPOSITION THAT FEES TO STATION PORTERS ARE NOT TIPS WITHIN THE ORDINARY MEANING OF THAT TERM AS USED IN THE ANTITIPPING LAWS. STATES IN THAT CONNECTION: THE SO-CALLED TIPS IN QUESTION WERE PAID TO STATION PORTERS AT JOHNSON CITY. MY INFORMATION IS THAT THESE PORTERS ARE EMPLOYED BY THE SOUTHERN RAILWAY TO PERFORM CERTAIN DUTIES FOR WHICH THEY RECEIVE VERY SMALL SALARIES. THAT THEY ARE NOT REQUIRED TO CARRY HAND BAGGAGE FOR PASSENGERS. ARE PERMITTED TO DO SO FOR THOSE PASSENGERS WHO DESIRE THEIR SERVICES.

A-3015, OCTOBER 25, 1924, 4 COMP. GEN. 410

TRAVELING EXPENSES - TIPS FEES TO STATION PORTERS FOR THE CARRYING OF HEAVY HAND BAGGAGE DO NOT CONSTITUTE A "GRATUITY" OR "TIP" WITHIN THE MEANING OF THE ANTITIPPING LAWS OF GEORGIA OR TENNESSEE, AND AN EMPLOYEE OF THE UNITED STATES TARIFF COMMISSION IS ENTITLED TO REIMBURSEMENT FOR FEES PAID TO STATION PORTERS IN GEORGIA AND TENNESSEE WHILE IN A TRAVEL STATUS.

DECISION BY COMPTROLLER GENERAL MCCARL, OCTOBER 25, 1924:

J. F. BETHUNE, SECRETARY AND SPECIAL DISBURSING AGENT, UNITED STATES TARIFF COMMISSION, REQUESTED MARCH 4 AND APRIL 26, 1924, REVIEW OF SO MUCH OF SETTLEMENTS NOS. C-4284-MS OF DECEMBER 15, 1923, AND C-7606-MS OF MARCH 4, 1924, AS DISALLOW IN HIS ACCOUNTS PAYMENTS AGGREGATING $1.70 REPRESENTING FEES PAID TO STATION PORTERS IN GEORGIA AND TENNESSEE, WHICH STATES HAVE ANTITIPPING LAWS. IN SUPPORT OF HIS REQUEST FOR REVIEW HE SUBMITS THE PROPOSITION THAT FEES TO STATION PORTERS ARE NOT TIPS WITHIN THE ORDINARY MEANING OF THAT TERM AS USED IN THE ANTITIPPING LAWS, AND STATES IN THAT CONNECTION:

THE SO-CALLED TIPS IN QUESTION WERE PAID TO STATION PORTERS AT JOHNSON CITY, TENN., FOR CARRYING HAND BAGGAGE. MY INFORMATION IS THAT THESE PORTERS ARE EMPLOYED BY THE SOUTHERN RAILWAY TO PERFORM CERTAIN DUTIES FOR WHICH THEY RECEIVE VERY SMALL SALARIES; THAT THEY ARE NOT REQUIRED TO CARRY HAND BAGGAGE FOR PASSENGERS, BUT ARE PERMITTED TO DO SO FOR THOSE PASSENGERS WHO DESIRE THEIR SERVICES.

SECTION 1 OF THE GEORGIA LAW, ACT OF AUGUST 19, 1918, PROVIDES:

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF GEORGIA AND IT IS HEREBY ENACTED BY THE SAME, THAT FROM AND AFTER THE PASSAGE OF THIS ACT IT SHALL BE UNLAWFUL FOR ANY EMPLOYEE OR SERVANT OF ANY HOTEL, COMMON CARRIER, OR SLEEPING CAR COMPANY, RESTAURANT, BARBER SHOP, OR OTHER PUBLIC PLACE, OR OF ANY PERSON, FIRM, OR CORPORATION TO SOLICIT OR RECEIVE ANY GRATUITIES OR "TIPS" FOR THE PURPOSE, OR WITH THE INTENT OF INFLUENCING THE ACTION OF SAID EMPLOYEE IN RELATION TO THE EMPLOYER'S BUSINESS, FROM THE GUESTS OR PATRONS OF SUCH HOTEL, RESTAURANT, BARBER SHOP, OR OTHER PUBLIC PLACE, OR OF SUCH PERSON, FIRM, OR CORPORATION.

SECTION 2 OF THE GEORGIA LAW MAKES IT UNLAWFUL FOR THE EMPLOYER TO "KNOWINGLY PERMIT" THE RECEIPT OF TIPS; SECTION 3 PROHIBITS THE GIVING OF TIPS AND SECTION 4 REQUIRES THE POSTING OF "NO TIPPING" NOTICES.

THE SECTIONS OF THE TENNESSEE CODE, 1917 EDITION, ON THE SUBJECT OF TIPPING ARE AS FOLLOWS:

6888A-31. IT SHALL BE UNLAWFUL IN THIS STATE FOR ANY HOTEL, RESTAURANT, CAFE, BARBER SHOP, DINING CAR, RAILROAD COMPANY, OR SLEEPING CAR COMPANY TO WILLFULLY ALLOW ANY PERSON IN ITS EMPLOY TO RECEIVE ANY GRATUITY, COMMONLY KNOWN AS A "TIP," FROM ANY PATRON OR PASSENGER, AND IT SHALL BE UNLAWFUL FOR ANY PATRON OF ANY HOTEL, RESTAURANT, CAFE, BARBER SHOP, DINING CAR, OR ANY PASSENGER ON ANY RAILROAD TRAIN OR SLEEPING CAR TO GIVE ANY EMPLOYEE ANY SUCH GRATUITY, AND IT SHALL BE UNLAWFUL FOR ANY EMPLOYEE OF ANY HOTEL, RESTAURANT, CAFE, BARBER SHOP, DINING CAR, RAILROAD COMPANY OR SLEEPING CAR COMPANY TO RECEIVE ANY GRATUITY OR TIP. (1915, CH. 185, SEC. 1.)

6888A-32. BY "GRATUITY" OR "TIP" AS USED IN THIS ACT IS MEANT ANY EXTRA COMPENSATION OF ANY KIND WHICH ANY HOTEL, RESTAURANT, CAFE, BARBER SHOP, DINING CAR, RAILROAD COMPANY, OR SLEEPING CAR COMPANY, OR THE MANAGER, OFFICER, OR AGENT THEREOF IN CHARGE OF THE SAME ALLOWS TO BE GIVEN AN EMPLOYEE OR WHICH ANY PERSON GIVES TO ANY EMPLOYEE, OR WHICH IS RECEIVED BY ANY EMPLOYEE AND IS NOT A PART OF THE REGULAR CHARGE OF THE HOTEL, RESTAURANT, CAFE, BARBER SHOP, DINING CAR, RAILROAD COMPANY, OR SLEEPING CAR COMPANY FOR THE THING BOUGHT OR SERVICE RENDERED, OR A PART OF THE SERVICES WHICH BY CONTRACT IT IS UNDER DUTY TO RENDER. * * * (1915, CH. 185, SEC. 2.)

6888A-33. EACH HOTEL SHALL POST NOTICES OF THIS ACT IN THE OFFICE AND IN EACH ROOM, AND EACH RESTAURANT, CAFE, AND BARBER SHOP SHALL POST AT LEAST TWO NOTICES OF THIS ACT IN TWO CONSPICUOUS PLACES IN THE SAME, AND EACH DINING CAR, RAILROAD, OR SLEEPING CAR COMPANY DOING BUSINESS WITHIN THIS STATE SHALL POST TWO NOTICES OF THIS ACT IN CONSPICUOUS PLACES IN EACH SLEEPING CAR, AND EACH CAFE, HOTEL, OR DINING CAR OPERATOR SHALL HAVE PRINTED IN A CONSPICUOUS PLACE ON THEIR MENU CARDS OR BILLS OF FARE A SYNOPSIS OF THE PROVISIONS OF THIS ACT. (1915, CH. 185, SEC. 3.)

THE GEORGIA LAW PROHIBITS GRATUITIES OR TIPS GIVEN OR RECEIVED FOR THE PURPOSE OF "INFLUENCING THE ACTION OF SAID EMPLOYEE IN RELATION TO THE EMPLOYER'S BUSINESS.' AS THE FEE TO A STATION PORTER IS NOT GIVEN IN ADVANCE BUT AFTER THE SERVICE HAS BEEN RENDERED, THE PAYMENT THEREOF COULD NOT BE SAID TO HAVE INFLUENCED THE PORTER IN CONNECTION WITH HIS EMPLOYER'S BUSINESS; I.E., FEES PAID TO STATION PORTERS IN GEORGIA AFTER THE RENDERING OF SERVICE AND IN PAYMENT OF CARRYING HAND BAGGAGE TO AND FROM TRAINS DO NOT COME WITHIN THE PROHIBITION OF THE GEORGIA ANTITIPPING LAW. (THE GEORGIA LAW WAS REPEALED AUG. 18, 1924.)

THE TENNESSEE LAW DOES NOT SPECIFICALLY REFER TO STATION PORTERS, EXCEPT IN SO FAR AS THEY MAY BE CONSIDERED EMPLOYEES OF A RAILROAD, AND THE LAW SPECIFICALLY DEFINES GRATUITIES OR TIPS AS ,EXTRA COMPENSATION NOT A PART OF THE REGULAR CHARGE * * * FOR SERVICE RENDERED OR A PART OF THE SERVICES WHICH BY CONTRACT IT IS UNDER DUTY TO RENDER.' THE SECTION REQUIRING THE POSTING OF NOTICES DOES NOT REQUIRE SUCH NOTICES TO BE POSTED IN RAILROAD STATIONS, THUS INDICATING THAT IT DID NOT CONTEMPLATE PROHIBITING FEES TO STATION PORTERS.

FURTHERMORE, IT IS A MATTER OF GENERAL KNOWLEDGE THAT STATION PORTERS ARE NOT REQUIRED TO CARRY HAND BAGGAGE TO AND FROM TRAINS FOR ALL PASSENGERS, OR AT LEAST DO NOT DO SO, EXCEPT IN ANTICIPATION OF THE PAYMENT OF A FEE FOR THE SERVICE SO RENDERED. SERVICES OF STATION PORTERS ARE NOT RECOGNIZED AS A PART OF THE SERVICE TO WHICH THE PURCHASE OF A RAILROAD TICKET ENTITLES THE PASSENGER. A REASONABLE FEE TO A STATION PORTER FOR CARRYING HAND BAGGAGE DOES NOT THEREFORE CONSTITUTE A "GRATUITY" OR "TIP" WITHIN THE MEANING OF THE ANTITIPPING LAWS OF GEORGIA OR TENNESSEE WHEN INCURRED BY REASON OF HEAVY HAND BAGGAGE; THE PAYMENT THEREOF IN ACCORDANCE WITH EXISTING REGULATIONS CONSTITUTES A NECESSARY EXPENSE OF TRANSPORTATION.

UPON REVIEW THE SETTLEMENTS ARE REVERSED AS TO THE ITEMS IN QUESTION AND A DIFFERENCE OF $1.70 IS CERTIFIED FOR CREDIT IN MR. BETHUNE'S ACCOUNTS.