On August 23, 2024, the Fifth Circuit Court of Appeals struck down a 2021 regulation by the U.S. Department of Labor restricting employers’ use of the tip credit for tipped employees under the Fair Labor Standards Act. The ruling effectively does away with the DOL’s longstanding “80-20” rule.
The case is Restaurant Law Center
In 2018, Congress added a provision to the Fair Labor Standards Act prohibiting employers from retaining employee tips or allowing managers or supervisors to participate in a tip pooling arrangement. Today, the U.S. Department of Labor announced a new final regulation in which the DOL asserts authority to penalize employers up to $1,100 per violation
On February 15, 2019, the U.S. Department of Labor issued Field Assistance Bulletin No. 2019-2, providing additional guidance for Wage and Hour Division staff regarding how to apply tip credit rules for employees who perform both tip-generating work (like taking orders and serving) and other duties. We provided an overview of the DOL’s position
Q. We use the tip credit for servers who work in our restaurant. When service is slow, we ask our servers to pitch in with other jobs around the restaurant, like sweeping up the dining room and cleaning the restroom. Can we still take the tip credit for time that our servers spend working on
If you’ve been paying attention to the news relating to wage and hour law (and really, who isn’t?), you may recently have heard quite a bit about new federal rules on tipped employees, and more recently Congress stepping in with new legislation. There has been a lot of rhetoric on all sides, though not always
Hospitality industry employers take note: If you claim a “tip credit” toward the minimum wage for any of your employees, you need to make sure that all tips are properly distributed to employees. A recent case from the Fifth Circuit Court of Appeals involving a Texas restaurant chain illustrates the hazards of making a mistake with the tip credit rules. Steele v. Leasing Enterprises, Ltd. (.pdf)
Here’s a summary of this cautionary tale:
Tip Credit Background
Under the Fair Labor Standards Act, employers are require to pay most employees at least $7.25 per hour. The FLSA allows tips received by employees to count for up to $5.12 of this total, meaning that an employer can pay tipped employees as little as $2.13 per hour so long as their tips are sufficient to make up the difference between their hourly wage and the federal minimum wage. But there are some restrictions. Employers can take advantage of this “tip credit” only if three conditions are met:
Continue Reading Here’s a tip: Don’t skim from employee tips