In a surprise move, the Fair Labor Standards Act (FLSA) is amended through President Donald Trump's spending bill that was passed March 23. The FLSA is a federal law that governs a number of wage issues, including the requirement that employers pay minimum wage to employees for every hour worked as well as an overtime premium for hours worked over 40 in a work week. FLSA compliance in the hospitality industry presents unique challenges, because many employees within the industry receive tips—and tips raise special issues with respect to wage and hour law.

Where you have employees who are customarily and regularly tipped, the FLSA provides that employers can take a tip credit which allows employers to pay eligible employees a direct hourly wage that is less than the federally mandated minimum wage. The current federal minimum hourly wage is $7.25. Therefore, with a tip credit, an employer can pay tipped employees less than minimum wage and use the tips to cover the difference. This is known as the tip credit; it is a credit that the employer takes toward the minimum wage.

However, to take the credit lawfully, employers must follow very specific rules. For instance, the tips belong to the employees; they generally cannot be forced to share the money with anybody. The exception to that general rule is where there is an established tip pool. A legal tip pool allows employees who are customarily and regularly tipped to share tips among themselves. In other words, wait staff can share tips with bussers, hosts/hostesses or bartenders. However, the tips cannot be shared with those who are not customarily tipped. Those employees who are not customarily tipped are typically the workers with whom the customer has no interaction. They are known as the “back of the house” and include positions such as cooks and dishwashers. An employer should never require employees who are customarily and regularly tipped to share tips with management or supervisors.

A clear understanding of the rules surrounding the tip credit is crucial for hospitality industry employers, because the consequences of violating them are dire. Employers who do not follow the tip credit rules lose the tip credit and must pay the affected employees minimum wage.

The rules were well defined until some employers who had tipped employees decided not to take a tip credit. In other words, they were paying their tipped employees $7.25 or more an hour. Those employers took the position that the FLSA did not control the tips and as long as they were paying employees at least minimum wage. In that instance, the employer could require tipped employees to share tips with those employees who are not regularly tipped or could keep the tips themselves. In 2011 the Department of Labor, under the Obama administration, issued a regulation that precluded employers from touching the tips whether or not the employer took a tip credit. The DOL took the position that the employer could never take or make the employee share the tips. The issue of whether the FLSA controlled tips where the employer did not take a tip credit went through the court system, and there was a split of authority as to whether the Department of Labor actually had any authority over the tips where the employer did not take the tip credit.

As this issue was winding its way through the court system, in came the Trump administration's DOL. They rescinded the 2011 DOL regulation that was passed during the Obama administration and changed its position to state that if the employer was not taking a tip credit, the DOL had no control over the tips and the employer was free to do whatever it wanted with them. Then, on March 23, President Trump signed the Consolidated Appropriations Act. That act includes a clause that amends the part of the FLSA that deals with tips. The amendment to the statute provides that the employer may not keep tips received by employees for any purpose regardless of whether the employer takes the tip credit. Now, whether or not the employer takes the tip credit, the tips belong to the employees. Here's the change: if the employer pays minimum wage or more, it can have the employee share the tips with nontipped employees, such as dishwashers and cooks. This change really helps bridge the gap in the pay between the front and back of the house employees.

To be clear, in the situations where the employer does not take the tip credit, it still cannot assert any control over the tips; but the amendment expands the type of positions with which the employer can require the tipped employee to share those tips. And because this was done by amending the FLSA, it is now the law, regardless of the DOL's position. Of course, there will still be litigation regarding who is in the tip pool where the employer does take the tip credit. Some things never change.

Susan N. Eisenberg is managing partner of the Miami office of Cozen O'Connor. She represents employers in employment matters. Contact her at [email protected].