Tips and Gratuity fees-Is one Halachically obligated to give a tip for a service he received, [i.e. waiter, cab driver, bartender, mover, etc]?

Tips and Gratuity fees-Is one Halachically obligated to give a tip for a service he received, [i.e. waiter, cab driver, bartender, mover, etc]?

A. Legal background:

It is customary in many countries to leave a tip, or gratuity fee, for those who provide certain services, in addition to the basic price that one must pay for the product delivered. This is most commonly practiced around the world in restaurants, to provide the waiter/waitress with a tip for their service. Customarily in the US, a restaurant tip is 15% of the total of the bill, and in Israel is 13% of the bill, although this matter differs amongst regions. As well, certain countries are accustomed to leave tips for cab drivers, movers, and other forms of service. In some situations, as is common in restaurants in some States in the US, the tip is considered part of the income of the waiter, and they are thus paid way below minimum wage by their employer. Thus, the tip or gratuity, may be expected as part of their basic salary, even though one also pays the restaurant owner for the product delivered. Other States, and countries however, do not allow tips or gratuity charges to infringe on one right for minimum wage, and hence all tips received are in addition to their basic salary. A recent law in Israel requires employers to pay minimum wage to workers, excluding tips.

Legal obligation: From a legal perspective, in some scenarios one is not obligated to provide a tip for a service, if he does not wish to do so, and the matter is left to the discretion of the client. However, in other cases, tips are considered obligatory and are able to be enforced. This is dependent on the country laws, and on whether the service provider informed the clients as to the policy of their service. For example, if a service provider clearly states to the client that the payment for the product does not include a gratuity fee, then it is a legal obligation to pay, and one can get arrested for theft for not doing so. On the other hand, if the matter was not made clear then it is left to the discretion of the client. Many restaurants explicitly write on the menu that their service does not include a gratuity fee, and hence it may be obligatory and legally enforced. However, in Israel, consumer laws do not obligate one to pay more than the listed price, even on such conditions.[1]   

B. The Halacha:

According to Halacha, the conditions of payment for labor and employees follow the customs of the area, unless explicitly stated otherwise.[2] Hence, in countries that it is universally accepted to give a tip, or service fee, the employer must do so according to Halacha, unless he explicitly stipulated otherwise upon receiving the service.[3] This applies even if the customer is new in town and was not made aware of this practice. The amount given would be upon the discretion of the client, but no less than the minimum accepted amount. Furthermore, even if it is not universally accepted to leave a tip, if at the time that the service was provided the client was informed that it does not include a gratuity/service fee, which must be paid in addition to the cost of the product, then he is obligated to pay it, if writing such conditions is legal in one’s country. If it is not universally accepted to give a tip for a certain service, and no condition was explicitly made upon ordering the service, then one is not obligated to do so, even if the tip is considered part of the salary of the service provider, by his employer. The same applies if it is universally accepted to choose whether or not to give a tip, based on the quality of service, in which case the matter Halachically remains within one’s discretion based on his assessment of the service. Nonetheless, even when one is not Halachically obligated to leave a tip, one should always take into account whether or not it will cause a Chillul Hashem or spread of enmity for fellow Jews, and is hence to act accordingly.

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[1] In Israel, the law prohibits a seller from adding further fees to a listed price, and hence legally one is not obligated to pay gratuity fees for restaurant orders, if it was not included in the listed price. [See Chok Haganat Hatzarchan law 17a] This matter has been brought to Israeli secular courts and they have heavily fined restaurants who included a service fee in the final bill, in addition to the listed price of the foods.

[2] See Michaber C.M. 331:1; Bava Metzia 83a; Rashba 2:168 that a Minhag overrides a Halacha in monetary matters; Rivash 171; 475; Chacham Tzevi 61

The reason: As whenever one hires another to do work for him all the accustomed work obligations and rights are assumed to have been agreed on and obligated on by the employer, and all business conditions set by two sides are Halachically binding. [See Michaber ibid] Accordingly, it is not the secular law that creates the Halachic obligation but rather the Minhag Hamedina. [Article of Rav Shpurn in Hayashar Vehatov ibid]

[3] See Mivakshei Torah 5760 and Tuvcha Yabiu 2:107 that Rav Elyashiv ruled not tipping a waiter is Chashash stealing; However see Asher Chanan 7:151 regarding tipping waiters that doing so is not an obligation, as by nature it is given to the discretion of the customer; Furthermore, based on the Israeli law brought above, it would seem that there is no Halachic obligation to give a tip, even if the universal practice is to do so, as the law prohibits making this an obligation, and that is the Minhag Medina.

[4] Beir Moshe 3:117; Shraga Hameir 7:155; Ateres Paz C.M. 1:3-12

[5] The reason: As Lo Sichaneim does not apply when one knows the gentile [Taz Y.D. 151:8] and giving him the present can bring one future benefit, such as for example, that the person continue providing one his service. [Beir Moshe ibid] Alternatively, Lo Sichaneim only applies when one is doing so out of one’s good heart and gesture. However, when doing so out of obligation due to norms of society, then it does not apply. [Shraga Hameir ibid]