Paul DeCamp, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s Washington, DC office, was quoted in HR Dive, in “DOL Withdraws Contentious 80/20 Tip Credit Guidance,” by Kathryn Moody.
Following is an excerpt:
In an opinion letter published yesterday, the Department of Labor (DOL) withdrew its 80/20 guidance regarding tipped and non-tipped duties. According to legal experts, the move likely means the end of class and collective action lawsuits currently pending in court that were predicated on the prior enforcement policy and will make future such actions harder.
DOL republished a letter that had been withdrawn “for further consideration” back in 2009. The guidance states that employers may take a tip credit for an employee’s work so long as the employee’s tasks are on the O*NET task list for that tipped job — a broad qualifier that encompasses most work a tipped employee in a restaurant would do while on the job, Paul DeCamp, co-chair of Epstein Becker Green’s Wage and Hour Practice group and former administrator of the DOL Wage and Hour division, told HR Divein an email. …
The withdrawal of the 80/20 guidance is largely considered good news for employers, simplifying wage and hour tracking for restaurants and ending “segregation of tasks based on job title,” DeCamp said. …
“Going forward, plaintiffs who try to assert a claim under the new opinion letter will have a much tougher time pleading a claim, and any such claim will likely be too individualized to support a class or collective action, resulting in a small and manageable single-plaintiff minimum wage case,” DeCamp said.
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