(Specially Concurring).
I think it important to reemphasize a part of § 59-10-12.13(A), supra: . ‘wages’ . . . shall be construed to mean the money rate at which the services rendered are recompensed under the contract of hire . either express or implied . . . .” Ms. Rene Gaffin, regional personnel manager for the defendant testified:
“Q. Is it contemplated, then, by Fred Harvey and a prospective employee that that employee will receive tips as a cocktail waitress while working at the Airport Marina?
“A. Yes.
“Q. And that will be part of that employee’s compensation for the efforts expanded by that employee?
“A. Yes.”
The plaintiff when asked if she would have accepted employment with the defendant solely on the hourly wage that was offered answered: “Well, no, sir. Cocktail waitresses or bartenders live on their tips. Their pocket money is their wages.” The foregoing establishes, without equivocation, that tips formed part of the compensation that the plaintiff was to receive under the contract of employment. The Supreme Court of Delaware when presented with the identical question we are confronted with here, stated the following in the case of Sturgill v. M & M, Inc., supra:
. it is beyond dispute that the claimant ‘earned’ more than $24.00 for 48 hours of services. Since the employer paid her only 50$ per hour, any amount of earnings in addition thereto necessarily came from tips. Common sense tells us that this employer did not simply agree to pay the claimant 50$ and nothing more. . . . And the only reasonable conclusion from the undisputed facts is that any tips received by claimant were necessarily a very part of her contract of hiring.
We are not called upon to determine the nature or character of tips as between claimant and the employer’s customers. To the latter, they may well have been (and are commonly) regarded as ‘gratuities’ and not part of the purchase price for food and services. But our inquiry is to the relationship between employer and waitress .
In short, this case falls under the general rule that when it is within the contemplation of the parties that tips are to be retained by an employee as part of his compensation, they are to be regarded as wages for compensation purposes.”
Southern Ry. Co. v. Black, 127 F.2d 280 (4th Cir. 1942), was an action brought by four porters under the Fair Labor Standards Act of 1938 to recover minimum wages and liquidated damages. One of the questions presented on appeal was whether the trial court had erred in directing the jury to deduct from the amount of minimum wages the amount of the tips which plaintiffs had received. The court of appeals in affirming the trial court had this to say:
“The fact that the tips are received from the passengers rather than from defendants is immaterial, for they constitute the very compensation which it was agreed between plaintiffs and defendants that plaintiffs should receive when they entered upon the service and a compensation which, while not paid by defendants, could not be received except as an incident to the service which defendants permit plaintiffs to render.”
In New Mexico’s Minimum Wage Act tips were taken into account in setting the wage scale. Section 59-3-22(C), N.M.S.A.1953 (2d Repl.Vol. 9, pt. 1, Supp.1975):
“All employers covered by subsection A of this section, who customarily and regularly receive more than forty dollars ($40.00) a month in tips shall be paid a minimum hourly wage of one dollar fifty cents ($1.50). All tips received by such employees shall be retained by the employees, except that nothing herein shall prohibit the pooling of tips among employees.”
In situations such as this, it is my opinion, that tips are not “gratuities” (to the contrary they are wages) within the meaning of § 59-10-12.13(A), supra.