The 2,232-page budget spending bill that was signed by President Trump on March 23, 2018, included an amendment to the Fair Labor Standards Act (FLSA) prohibiting employers, managers, or supervisors from collecting or retaining tips made by employees, regardless of whether the employer takes a tip credit.
This law essentially blocked the U.S. Department of Labor’s 2017 proposed rule which would have allowed tip sharing between employees who directly earn them with “back of the house” employees who “[c]ontribute to the overall customer experience,” but do not traditionally receive direct tips, such as cooks and dishwashers.
The next step with the DOL’s proposed rule could be that the agency pulls it or conforms the rulemaking to the spending bill. However, experts are concerned that the bill did not go far enough to provide clear and concise definitions. For example, in the restaurant industry employees can wear many hats. So what happens when a food server is the shift lead? Is a shift lead a manager or supervisor because they are granted authority, be it minimal authority, over other food servers? Employers will be looking to the DOL to provide more specifics.
For the time being, the FLSA standard continues, “[a] valid tip pool may not include employees who do not customarily and regularly received tips, such as dishwashers, cooks, chefs, and janitors.”