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”, and revised the Field Operations Handbook accordingly.
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.
After 80 years with the USDOL, the FLSA needs a shakeup. The problem is that, even as we anxiously await proposed regulations from the current agency and contemplate how things might be under a potential new one, it’s the 80-year-old law that needs change, and not just because it is outdated.
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.
Addressing the compelling need for authoritative U.S. Department of Labor answers to actual, day-to-day FLSA questions will be of benefit to everyone affected by or concerned with that law.
The U.S. Department of Labor has announced that it will resume the practice of issuing wage-and-hour opinion letters.
U.S. Labor Secretary candidate Alexander Acosta's March 22 confirmation hearing might have provided insight into some potential Labor Department actions affecting the FLSA and analogous federal laws.
Perhaps the conditions are right for a coalition drawn from employees, employers, and government representatives to wrestle the FLSA into the 21st century.
U.S. Wage and Hour Administrator David Weil has said that the Wage and Hour Division will not resume the practice of issuing opinion letters in response to questions about FLSA compliance.