On September 30, 2025, the U.S. Department of Labor (DOL) issued an opinion letter reaffirming its longstanding approach to determining which employees “customarily and regularly” receive tips for purposes of compliance with Fair Labor Standards Act (FLSA). The DOL opined that front-of-house oyster shuckers qualify as “tipped employees” due in part to their interaction with customers who leave tips.
By way of background, the FLSA permits employers to pay “tipped employees” a cash wage as low as $2.13 per hour and to take a “tip credit” in which tips received by the employee make up the difference needed to achieve the FLSA minimum wage of $7.25 per hour. To qualify as a tipped employee, the employee must be engaged in an occupation in which employees “customarily and regularly” receive tips. Moreover, an employer may require an employee who is subject to the tip credit to contribute tips to a “tip pool” only if that pool is limited to employees engaged in occupations in which employees “customarily and regularly” receive tips.1
The opinion considered the status of front-of-house oyster shuckers working at an oyster bar where customers could watch them prepare oysters. Although they did not take orders, the oyster shuckers interacted with patrons by explaining oyster offerings, making suggestions, and answering questions. The DOL opined that these employees qualify as “tipped employees” because:
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