New Legislative Action on "Tip Pooling"
By: Jim Sullivan and Brian Morris
Congress and the President have waded in to the ongoing debate regarding employers’ use of “tip pools” under the Fair Labor Standards Act (“FLSA”) by passing the Tip Income Protection Act (“TIPA”) as part of the omnibus spending bill.
The FLSA permits an employer to take a partial credit against its minimum wage obligations based on employee tips if the employee retains all of his or her tips, or they are made part of a tip pool shared only with employees who “customarily and regularly receive tips.” See 29 U.S.C. § 203(m). Thus, an employer utilizing a tip credit to comply with minimum wage obligations cannot establish a tip pool that includes non-tipped employees (e.g., back-of-the-house restaurant employees). The FLSA left the allocation of tips unregulated where an employer did not use tip credits.
In 2011, the Department of Labor (“DOL”) issued a regulation applying the limitation on the use of tip pools to cases where the employer did not take a tip credit and paid employees the full federal minimum wage. See 29 C.F.R. § 531.52. A number of federal courts concluded that the regulation was inconsistent with the text of the FLSA. See, e.g., Marlow v. New Food Guy, Inc., 861 F.3d 1157, 1163-64 (10th Cir. 2017) (2011 DOL regulation was inconsistent with the FLSA, which did not authorize the agency to “regulate the ownership of tips when the employer is not taking the tip credit”). However, the Ninth Circuit disagreed, reasoning that because the FLSA is “silent as to the tip pooling practices of employers who do not take a tip credit” it should defer to the DOL. Oregon Rest. and Lodging Ass’n v. Perez, 816 F.3d 1080, 1090 (9th Cir. 2016).
In 2017, the DOL announced proposed rulemaking to rescind the 2011 regulation. See here and here. After much deliberation regarding the proposed agency action, Congress enacted TIPA, which states, in relevant part:
“An employer may not keep tips received by its employees for any purposes, including allowing managers or supervisors to keep any portion of employees’ tips, regardless of whether or not the employer takes a tip credit.”
TIPA also provides that the 2011 regulation shall have “no force of effect.” An employer that violates TIPA may be liable for any tip credit taken, the amount of the withheld tips, liquidated damages, and $1,100 civil penalty for each violation.
Stated simply, TIPA limits the permissible use of tip pooling for all employers irrespective of whether an employer takes advantage of a tip credit or whether its employees’ regular hourly rate exceeds the minimum wage. However, TIPA’s language raises a number of interpretive questions, such as:
What does it mean for an employer to “keep tips” received by employees? The law very likely prohibits an employer from diverting tips directly to its own coffers. But does an employer “keep tips” by implementing a standard tip pool that does not include “managers or supervisors?”
TIPA does not define a manager or supervisor. Assuming TIPA permits standard tip pools, does an employer violate the law if the pool includes modestly-paid hourly employees with minimal management responsibilities and limited or no ability to discipline employees (e.g., shift leads)?
These are a few of the questions employers with tipped employees will confront in the coming months and years as we await additional guidance from the courts and the DOL. Employers in the restaurant and other industries should closely analyze how they distribute employee tips to ensure compliance with TIPA.
We will keep readers apprised of important judicial and agency interpretations of TIPA.