Employers that utilize the “tip credit” under the federal Fair Labor Standards Act, or whose employees receive tips, should carefully consider regulatory changes that were proposed by USDOL today.
The USDOL has removed the infamous "20% Rule" from its Field Operations Handbook, but employers should be mindful of its disjointed approach to revisions across and within agency materials.
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.
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. 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.
Despite what a couple of recent court decisions have suggested, it appears that neither an individual nor the U.S. Department of Labor is permitted to file an FLSA lawsuit based simply upon the "tips are always the employee's property" position that USDOL has taken.
The 11th Circuit U.S. Court of Appeals has ruled that a tipped employee for whom no FLSA "tip credit" had been taken, and to whom all FLSA wages due had been paid, had no FLSA claim against her employer with regard to its allegedly having converted some of her tips to its own uses.
Employers must take into account the wage-hour requirements and restrictions of all jurisdictions in which they employ tipped workers, as well as how these provisions interact with the FLSA's requirements.
Tipped-worker employers should immediately respond to the misleading "tipped minimum wage" PR campaign.