On Oct. 29, 2021, the Wage and Hour Division of the United States Department of Labor (DOL) released its final rule regarding “dual jobs” for tipped employees under the Fair Labor Standards Act (FLSA). The final rule, which becomes effective on Dec. 28, 2021, withdraws a prior final rule from 2020 regarding dual jobs and amends regulations to distinguish between tipped occupations and non-tipped occupations.
Employers of tipped workers will need to review the daily duties of their employees to ensure that they don’t run afoul of the new minimum wage standards regarding the tip credit. Employers will want to pay particular attention to the daily tasks completed by employees and identify whether certain tasks are tip producing work or directly support tip-producing work. A key component for compliance will be breaking up duties that directly support tip-producing work to no more than 30 continuous minutes, for instance, by spreading those tasks out throughout a shift.
The FLSA requires that hourly, non-exempt employees be paid a minimum wage of $7.25 per hour. Employers receive a credit toward the required minimum wage for tipped employees, up to $5.12 per hour, so long as the employee receives enough tips while working to cover that difference. A tipped employee is a worker who regularly receives more than $30 per month in tips. The DOL distinguishes between work that is directed toward producing tips, which allows for the minimum wage credit, and work that is not directed...
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