After getting hundreds of emails from readers about a couple in Bethlehem, Pennsylvania who got arrested for not leaving a tip I decided I had better say something about it.

The first thing everyone should realize is there’s a difference between a “service charge” and a “tip.”

Even though I’ve always advocated leaving a gratuity for your waiter, you do not have to leave a tip in a restaurant. A tip is something freely given and customers are under no legal obligation to leave one. If you receive terrible service you don’t have to leave a tip. If you have great service you don’t have to leave a tip. Of course if you decide to go on some kind of anti-tipping jihad you’ll probably find yourself unwelcome at all the restaurants you patronize, receive truly awful service, get seated next to the toilets and be victimized by the various ways waiters have of punishing parsimonious customers. But as much as we’d like to, we can’t have you hauled away in handcuffs if you want to act like an obnoxious, cheap bastard. Why? Because the tip is voluntary and you don’t have to pay it.

A service charge, however, is a totally different thing. A service charge is considered part of the bill and not paying it is like not paying the bill. Refusing to pay a restaurant bill is considered theft of service. If you try pulling that shit you won’t be doing dishes with Pedro in the back. You’ll to jail.

Many restaurants automatically tack a 15-20% service charge onto bills for parties of six or more. Why? Well there’s something I like to call the “Kitty Genovese Theory of Tipping.” You remember Kitty Genovese don’t you? In 1964 Ms. Genovese was attacked by a man with a knife as she was walking though Kew Gardens, Queens on her way home from work. Despite the fact the attack lasted half an hour and numerous people witnessed the assault, no one did anything to save her. While some onlookers knew she had been stabbed, others thought they were just witnessing a lover’s quarrel and still others ignored it because they simply didn’t want to get involved. By the time the police were finally summoned Ms. Genovese’s assailant had stolen $49 dollars out of her purse, raped her and fatally stabbed her.

In the aftermath of this terrible tragedy psychologists began to explore what’s called the “bystander effect.” What’s the bystander effect? It’s a phenomenon that occurs when “larger numbers of bystanders present during an incident decrease the likelihood that someone will step forward and help a victim. The reasons include the fact that onlookers see that others are not helping either, that onlookers believe others will know better how to help, and that onlookers feel uncertain about helping while others are watching.” Psychologists call this “diffusion of responsibility.” So if you’re in a large group and you see something bad going down there’s a good chance you’ll assume the other people in group will take care of the problem and you won’t do anything.

Now I’m not making light of Ms. Genovese’s murder. But if you’ve ever watched a large party in a restaurant divvy up a bill you’ll see the “diffusion of responsibility” thing at work. In many cases patrons think the host or the “other guy” is going to leave the tip so they don’t throw in. The result? The waiter often gets a bad tip or no tip at all. It happened to me a thousand times. And since a large party usually takes longer to eat than a couple or a foursome, a server can spend three for four hours working a table and receive little or no renumeration via tipping. That sucks. As a result of this phenomenon restaurant owners began tacking service charges onto checks to prevent large parties from inadvertently or purposefully stiffing their waiter. I agree with this procedure 100%.

Most establishments will make customers aware of this policy by posting it on the front door or printing it on the menu. And if it’s a posted policy the service charge is part of the bill and you have to pay it. Several years ago a restaurant patron got bad service and refused to pay a tip on a large party and was arrested. The judge let the man go because the restaurant didn’t call the automatic gratuity a “service charge.” And since tips are freely given, the judge contended, the man was under no legal obligation to pay it. If that restaurant posted the tip as a service charge, however, the judge said the man would’ve done time in the pokey.

So let me be clear. You don’t have to leave a tip. But you must pay a service charge. And while most restaurants will only add this charge to parties of six or more, some restaurants have taken customer choice out of the equation all together and tack on a service charge regardless of the number of patrons. And yes, you have to pay that too. I don’t agree with that practice by the way.

So that brings me to the couple in Pennsylvania. I don’t know them from Adam. They could be the be the nicest people in the world or cheap pricks. According to the news report the police said the gratuity was part of the actual bill, a service charge. So by not paying it the couple technically broke the law. But if what the couple said about the slow service they received is true then I think the restaurant’s owners are real dopes for pursuing this. If you’re forced to pay a service charge then “service” must be provided. I’m not a lawyer but this sounds like a “breach of contract” thing.

According to the news report, “The owner admitted that the group waited unusually long for their food, but said the pub was extremely busy that night. He said managers offered to comp the food, a claim the couple denies ever happened.” That tidbit me two things. One, the restaurant was aware the couple received subpar service. Why offer to comp the meal if it wasn’t? And I’m willing to bet that if you look into that number of staff working in the restaurant that night it was woefully unprepared for the level of customers it was serving. This is quite common in the restaurant industry. Sometimes ownership, in an effort to cut payroll costs, will keep the minimum amount of people on the floor and in the kitchen. Then, when they get hit by a mad rush, BOOM, the whole place goes into the weeds. To be fair however, sometimes servers are the cause of the problem. Waiters can be a lazy bunch and sometimes restaurants find themselves understaffed because the servers call out sick. Usually the reason’s they’re “sick” is because they’re hungover, can’t find a babysitter, are getting laid or their consciousness has been altered by various chemicals.

If I was the manager on duty in the restaurant in question I would have given that entire table free desserts, drinks, a gift certificate as an apology and not expected them them to pay the service charge. (And if it was my place I’d have given the server the tip out of my pocket – unless he or she was high as a kite.) Of course I wasn’t there but it sounds like the managers on duty were inexperienced, afraid of the owner’s reaction to any decisive thinking on their part (That’s probably why there’s a disagreement over whether a comp was offered) or they had a bitter axe to grind. One thing’s for sure, they brought a load of bad publicity down on their restaurant and the ire of the local cops. The police have more important things to take care of than this shit.

So yes, the couple in question broke the law. But due to the circumstances I can see in the report they should be given a pass. But this is a rare dispensation from “The Waiter.” I’m sure some yuppie pricks will twist my words around and start refusing to pay service charges because they got a bad table or didn’t get enough butter for their bread. Don’t try it. In most cases, unless there’s an egregious lack of service, and I mean egregious, people must pay the service charges posted on the menu. And if you feel service charges are unfair then you’re free to patronize restaurants that don’t have them.

So let it be written, so let it be done.

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