Wage Garnishment on Waiter's Tips

Will My Kids Get Back Pay for My SSD?
Written By
Beverly Bird
Beverly Bird
Oct 27, 2010
2 minute read

Under the Federal Wage Garnishment Law, tips aren't considered earnings and they're not subject to garnishment. But states are free to enact their own laws and what holds true on one side of a state line may not be the case on the other. The Tennessee Court of Appeals and the Appellate Division of New Jersey's Superior Court have agreed with the federal position, denying creditors the right to try to garnish this type of income. If you live in Colorado, however, your tips are at risk.

How Garnishment Works

Garnishment is the act of an employer withholding a percentage of an employee's pay and turning it over to a creditor instead, pursuant to court order. This makes garnishing a waiter's tip income logistically difficult, if not impossible. In most cases, these are cash transactions made directly from one person to another. No one other than the waiter and the customer knows exactly how much the waiter received, and the money is never in the possession of the employer. States have ruled that the employer never has a right to that money, so it can't be garnished. The employer isn't giving it to the waiter -- the customer is.

Credit Cards vs. Cash

Some states have drawn a line between cash tips and tips included in credit card transactions. For a brief time while the transaction is being processed, it can be argued that the employer has possession of the money. It should therefore be subject it to a wage garnishment order. But the Tennessee Court of Appeals disagreed with this, saying the money is still the waiter's property, not that of the employer or the establishment. The New Jersey trial court initially ruled that credit card tips may be garnished, but the Appellate Division overturned the decision.

An Exception to the Usual Rule

An exception exists when tips don't pass directly from the customer to the waiter, even via credit card. If you work in a dining establishment that pools tips, the money may be subject to garnishment because all tips go into one pot. The employer then apportions the money between servers. The money is in the employer's possession for a period of time and is under his control. Some states have ruled that he can garnish a portion of your share of the pool before turning the balance over to you.

Beverly Bird

Beverly Bird is a professional writer specializing in areas of personal finance, divorce and family law, bankruptcy, and estate law. She writes as the tax expert for The Balance.

Sponsored
Sapling Logo

We demystify personal finance and make financial adulting easier. From student loans to credit and investing, all the money questions you were ever afraid to ask are right here.

Property of TechnologyAdvice. © 2026 TechnologyAdvice. All Rights Reserved

Advertiser Disclosure: Some of the products that appear on this site are from companies from which TechnologyAdvice receives compensation. This compensation may impact how and where products appear on this site including, for example, the order in which they appear. TechnologyAdvice does not include all companies or all types of products available in the marketplace.