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.
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.
Changes from USDOL have been numerous and fast paced. Take a second to look back on what has already happened in the federal wage and hour world in 2018, and what is yet to come.
Employers should be aware of how we got to the recent FLSA amendment regarding tips, and have a solid understanding of their own tip-related practices, before trying to determine where to go from here.
Today's federal budget included a rider to amend the FLSA and prohibit an employer from keeping tips received by its employees, regardless of whether or not the employer takes a tip credit.
The public comment period for the USDOL's proposed rescission of the 2011 tip regulations has closed. Regardless of where data and "fairness" concerns might lead one, the fundamental legal issue is that the agency's authority does not extend to circumstances where an employer is not taking the tip credit.
The U.S. Department of Labor has now proposed regulatory revisions that would in effect rescind the prior administration's tip-retention restrictions as to employers who do not rely upon the FLSA tip-credit.
The U.S. Department of Labor has sought the Office of Management and Budget's approval of a proposed rescission of tip-pooling restrictions as to employers who do not rely upon the FLSA tip-credit.
The U.S. Labor Department has published the 2018 wage-rate floor required by Executive Order 13658, "Establishing A Minimum Wage for Contractors". Beginning on January 1, 2018, the minimum rate will increase by 15 cents per hour to $10.35 per hour.
The U.S. Department of Labor has announced that a forthcoming Notice of Proposed Rulemaking will seek to "rescind the current restrictions on tip pooling" by employers who do not rely upon the FLSA tip-credit.