It feels right to share tips with those who support the servers, but is it legal? Currently, you cannot mandate that your tipped staff share their tips with other staff, such as hosts, dishwashers and bussers. But that may change soon for some hospitality employers. Last week, the federal Department of Labor (DOL) proposed a new regulation that, if enacted, will allow employers that pay their tipped employees the full minimum wage to include all staff in mandatory tip pools.
Under federal law, employers may pay tipped employees a reduced minimum wage of $2.13/hour, instead of $7.25/hour, by counting up to $5.12/hour of the employee’s tips toward the minimum wage requirement. This is a “tip credit.” If the DOL’s new rule on tip pooling is enacted, employers who do not claim a tip credit may include non-tipped workers, such as cooks and dishwashers, in mandatory tip pools. Tips must be re-distributed at least as often as wages are normally paid. The proposed new rule will continue to prohibit employers, including managers and supervisors, from keeping any portion of an employee’s tips, including from a tip pool.
The proposed rule will also effectively end the 80/20 rule, often called the 20% rule, and provide much needed clarity to employers about when they are required to pay the standard federal minimum wage of $7.25/hour to tipped employees. In 2011, the DOL enacted the 80/20 rule, under which employers are prohibited from taking the tip credit if the employee spends 20% or more time on non-tipped tasks, e.g. clearing tables, completing side work, making coffee, cleaning floors. The 80/20 rule has been difficult to administer and enforce, as is evidenced by the numerous lawsuits filed across the country challenging the rule.
In 2018, the DOL attempted to abandon the rigid 80/20 rule, however, courts have disagreed on whether it was effectively rescinded. The DOL’s regulations proposed last week will address the ambiguity. Under the proposed new rule, an employer may take the tip credit for any amount of time a tipped employee spends on non-tipped duties so long as those non-tipped duties are (1) related to the tipped duties and (2) are done at the same time as the tipped duties or within a reasonable amount of time before or after the tipped duties. The intent is to create a much more flexible system for calculating wages for tipped employees than the 80/20 rule.
The proposed rules are not yet final. They are open to public comment until December 9, 2019, at which time the DOL will analyze comments and proceed with the final rule-making process. The DOL does seem to be fast-tracking major initiatives in advance of the November 2020 election. We will continue to monitor the proposed regulations and keep you informed.
The attorneys and HR professionals at Lake Effect HR & Law are ready to assist and advise if you have questions related to federal or state labor regulations or your employee pay policies. Contact us at info@LE-hrlaw.com or 1-844-333-5253.