Federal regulations have long provided that employees whose wages are subject to a tip credit must retain all tips they receive, with the exception that customarily tipped employees — i.e. front-of the-house service employees — are permitted to share in tips received.
In 2011, the U.S. Department of Labor (“DOL”) amended its tip regulations to limit tip pool participation to front-of-the-house employees regardless of whether a tip credit was applied to their wages.
Employers and hospitality industry advocacy groups reacted by filing lawsuits throughout the country challenging the DOL’s rulemaking authority to extend the scope of tip pooling restrictions to employees whose wages were not subject to a tip credit.
There is currently a circuit split over the validity of the DOL’s 2011 regulation.
In Oregon Restaurant and Lodging Association v. Perez, the Court of Appeals for the Ninth Circuit found that the Fair Labor Standards Act (“FLSA”) does not expressly set forth requirements for employers that do not apply a tip credit against employees’ wages, therefore the DOL is authorized to interpret this absence in the statute through rulemaking.
In contrast, in Marlow v. The New Food Guy, Inc., the Tenth Circuit rejected the 2011 regulation, finding that the DOL is not vested with such rulemaking authority, thus employers may distribute tips to both tip-earning and non-tip-earning employees, e.g. cooks and dishwashers, to the extent a tip credit is not applied to employees’ wages.
The National Restaurant Association has requested the Supreme Court of the United States to hear an appeal of the Ninth Circuit case. The request is currently pending.
Acknowledging that it may have exceeded its rulemaking authority and in light of the pending petition to the Supreme Court, on December 4, 2017, the DOL issued a Notice of Proposed Rulemaking (“NPRM”) to rescind the portion of the 2011 regulation requiring tip pool compliance with respect to employees whose wages are not subject to a tip credit. If finalized, this rule would permit employers to regulate tip pooling without restriction as long as employers do not apply a tip credit against its employees’ wages (or if employees are paid at least the current $7.25 federal minimum wage in states that maintain higher minimum wage thresholds and permit the taking of a tip credit).
In its NPRM Fact Sheet, the DOL explained that the proposed rule would allow employers to distribute customer tips to larger tip pools that include non-tipped workers, such as cooks and dishwashers, which would likely increase the earnings of those employees who are newly added to the tip pool and further incentivize them to provide good customer service.
The DOL additionally cited as a benefit greater flexibility to employers in determining pay practices for tipped and non-tipped workers, as well as a reduction in wage disparities among employees who all contribute to the customers’ experience. Some early critics of the NPRM have voiced concern that it gives employers the unrestricted ability to retain employees’ tips, which would be antithetical to the DOL’s stated purpose for the Rule.
It is important to keep in mind, however, that even if finalized, the NPRM would not preempt state or local laws or regulations that provide for more expansive employee rights regarding tip pooling. For example, the NPRM would not result in any change in New York under its current regulations, which prohibit tip sharing with back-of-the-house employees.
The NPRM is currently subject to a 30-day comment period with a January 4, 2018 deadline, pursuant to which the DOL will review and consider all comments received before publishing the rule in its final form in the federal register.
In the interim, employers should review and determine whether it is feasible — and, if so, advantageous — to adjust its employees’ wage rates (including increasing front-of-the-house employees’ wage rates to the $7.25 minimum wage threshold or decreasing back-of-the-house employees’ wage rates to the federal minimum wage) and abandon the tip credit to allow for unrestricted tip pooling among all employees. In addition to considering the potential economic benefits, employers should also consider the potential employee relations concerns in making any such adjustments, including the possibility that employees’ total compensation may decrease on account of any such potential changes.