The U.S. Department of Labor’s Wage and Hour Division (WHD) issued Opinion Letter FLSA2026-13 addressing a common question in the restaurant industry: Can a supervisor who also performs tipped duties like bartending receive a portion of other employees’ tips through a tip pool1 or tip-out arrangement? The WHD concluded that a restaurant “shift supervisor” who meets the applicable duties test for a manager or supervisor may not participate in a tip pool. This is the case even when the manager or supervisor also works bartending shifts or assists hosts and bussers.
The opinion arose from a restaurant's tip-sharing arrangement, which required servers to tip out bartenders, hosts, and bussers. A “shift supervisor” regularly worked bartending shifts and performed managerial functions like scheduling employees, directing work, and determining when shifts ended. During those shifts in which the supervisor bartended, they received a share of tip-outs from servers and occasionally a share of amounts intended for hosts and bussers. The WHD concluded that if the shift supervisor satisfied the DOL's definition of a manager or supervisor, their participation in the tip pool violated FLSA section 3(m)(2)(B).2
The WHD’s opinion is significant because it emphasizes that managerial status depends on job duties, not job titles. An employee is a “manager or supervisor” for tip-pooling purposes when the employee's duties match the executive duties test found in the FLSA's white-collar...
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