The labor law firm of Jackson Lewis LLP has provided sample versions of two notices which may be used by SDRA members for their tipped employees.

The Jackson Lewis firm has been providing these sample forms to their clients to achieve and document compliance with these new regulations. The first form is for use upon hire or when initially providing notice to a current employee consistent with the new notice rules.  The second form is for use whenever the employee’s hourly cash wage changes, the federal minimum wage changes, or the tip credit amount changes.     

 

The Jackson Lewis firm notes that the US Department of Labor (DOL) has not stated that the notices must take the exact form reflected in these samples.  Specifically, the regulations do not require quoting the applicable statutory language.  Nevertheless, based on several cases the Jackson Lewis firm has litigated in recent years involving notice and the tip credit, the law firm has indicated that it is their experience that quoting the statutory language is a best practice in terms of deterring claims and ensuring compliance with the notice requirements.  Accordingly, you may want to revise your forms to include portions of the sample forms that quote the statutory language (or feel free to use the entire form as it is currently drafted).

 

On a related note, the Jackson Lewis law firm says employers must make sure that 100% of the tips contributed to a tip-share and/or tip-pool are being redistributed to the employees.  You as the employer cannot retain ANY of the money that is contributed to the tip-share/tip-pooling arrangement. 

 

In addition, it should also be noted that employees who don’t “customarily and regularly” receive tips should not be receiving tips in a tip pooling/tip sharing arrangement.  Specifically, dishwashers, cooks, chefs, and janitors cannot be included in a valid tip-pooling arrangement.