USDOL has finally clarified the so-called “20% Rule” limiting the use of the FLSA tip credit even with respect to individuals qualifying as “tipped employees”.
The USDOL recently announced that it will continue its Payroll Audit Independent Determination (PAID) program, and wasted no time beginning its efforts to further educate employers and attorneys about the benefits of the program.
USDOL has announced that it does not expect to address the FLSA white-collar exemptions (the so-called “overtime rule”) until March 2019 and has slotted "joint employment" for December 2018 instead.
In an opinion illustrating the tangled web we weave when de-facto legislation takes place outside of Congress, the Ninth Circuit in Marsh v. J. Alexander's gave deference to the USDOL's sub-regulatory "20% Rule", restricting an FLSA tipped employee's activities, essentially on the basis that the agency's position was previously available online and that employers were therefore presumed to have notice of its potential effect.
The first of several USDOL "listening" sessions provided few answers. The primary question remains whether the agency will listen this time around as it takes on the FLSA's white-collar exemptions.
The concept of "fair" workweeks, scheduling, etc., while primarily a local-government endeavor, is causing a national headache. Given the breadth and complexity, let alone variety, of these provisions, employers must invest in getting to know the specifics of each jurisdiction and, just as importantly, training front-line managers.
This week the USDOL has issued a press release announcing that it will hold “listening" sessions to "gather views” on the white collar exemptions and released new Opinion Letters addressing other FLSA topics, including the 7(I) overtime exemption for certain employees of qualifying retail and service establishments.
Post Epic, FLSA doesn't block individual arbitration of collective actions according to a federal appeals court.
Tip credit controversies are alive and well as employers seek clarity on the USDOL's so-called 20% Rule regarding "tipped employees" engaging in activities that do not, or at least not directly, produce tips.
Employers often have pay plans detailing the events that trigger an employee's entitlement to commission payments. A recent Seventh Circuit decision serves as a reminder that employers should closely consider the particular position when doing so.