Paul DeCamp, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s Washington, DC office, was quoted in the Bloomberg BNA Daily Labor Report, in “No Full Minimum Wage for Servers’ Non-Tipped Duties: DOL,” by Jaclyn Diaz. (Read the full version – subscription required.)

Following is an excerpt:

The Labor Department has issued new enforcement rules for investigating businesses for potentially improperly paying food servers and other tipped workers.

The Field Assistance Bulletin, and the updated section of the Field Operations Handbook, tracks the approach the department explained in a November opinion letter. The DOL in that letter said waiters who rely on tips for wages but have non-tip-producing duties that are incidental to their main job—such as washing dishes or cleaning tables—don’t have to be paid full minimum wage for time spent on those duties.

The Fair Labor Standards Act requires employers to pay workers at least the federal minimum wage, but employers can pay a lower direct cash wage and count a limited amount of the employee’s tips as a partial credit to satisfy the difference between the direct cash wage and the federal minimum pay rate. …

Guidelines Laid Out

The FAB on 80/20 provides standards for WHD staff to consult when investigating allegations of potential pay violations for tipped workers.

The bulletin states an employer can take the tip credit if the Occupational Information Network (O*NET) website lists non-tipped duties as core or supplemental for the tipped worker’s job. Employers can’t take tip credit for tasks not included in the O*NET description for the employee’s tipped work or for a new job without a description on that database.

“The department does say that if the restaurant brings a server in for eight hours to do nothing but clean the kitchen, that’s a problem,” Paul DeCamp, who ran the WHD under President George W. Bush said. “As long as we are talking about a normal server with normal opening and closing work, there’s no problem taking tip credit for that time.”

DeCamp, now an attorney with Epstein, Becker, Green, represented the Restaurant Law Center in a federal lawsuit against the DOL over 80/20.

The Section 14(c) guidance didn’t provide any policy change, but it did offer technical guidance on how to implement work and pay standards for employers interested in participating in the 14(c) program.

Litigation Effect

Given the DOL’s standing that the Nov. 8 opinion letter should be applied retroactively, “there is no basis for courts to continue to apply rejected guidance that the department used to have. Current guidance applies for all time,” DeCamp said.



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