Tipped Employees: New Federal Guidance

Tipped Employees: New Federal Guidance

South Dakota Retailers Association  

The U.S. Department of Labor’s Wage and Hour Division (WHD) today published guidance on the following topics.

TIPPED EMPLOYEES:

 A recent change to Field Operations Handbook (FOH) 30d00(f) contains the Wage and Hour Division’s (WHD) interpretation concerning whether tipped employees are working “dual jobs.”   Specifically, Field Assistance Bulletin (FAB) No. 2019-2 explains that, consistent with WHD Opinion Letter FLSA2018-27 (Nov. 8, 2018), WHD will no longer prohibit an employer from taking a tip credit based on the amount of time an employee spends performing duties related to a tip-producing occupation that are performed contemporaneously with direct customer-service duties or for a reasonable time immediately before or after performing such direct-service duties.  WHD has updated FOH 30d00(f) accordingly.

 

Employers remain prohibited from keeping tips received by their employees, regardless of whether the employer takes a tip credit under the Fair Labor Standards Act (FLSA). In addition, employers electing to use the tip credit provision must ensure tipped employees receive at least the minimum wage when direct (or cash) wages and the tip credit amount are combined. If an employee’s tips combined with the employee’s direct (or cash) wages do not equal the minimum hourly wage of $7.25 per hour, the employer must continue to make up the difference.

For more information about WHD or the Fair Labor Standards Act, visit www.dol.gov/whd.

 

FLSA SECTION 14(c):

This guidance relates to the impact of Rehabilitation Act section 511 and provides general guidance on the administration of section 14(c). 

Field Assistance Bulletin (FAB) No. 2019-1 concerns the definition of subminimum wages under section 511 and WHD’s enforcement of the limitations on the payment of those wages under section 14(c).

For more info about the section 14(c) program, visit https://www.dol.gov/whd/workerswithdisabilities/.

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