DOL Reissues Opinion Letter Eliminating the 80/20 Rule

By: Tracy A. Miller

November 13, 2018

On November 8, 2018, the Department of Labor (DOL) gave hospitality employers good news when it retracted its “80/20 rule,” which prevented employers from taking the tip credit when tipped employees spent more than 20 percent of their working time on non-tipped work.

The Fair Labor Standards Act (FLSA) allows employers to pay their tipped employees not less than $2.13 per hour in cash wages and take a tip credit equal to the difference between the cash wages paid and the federal minimum wage. If a tipped employee engaged in a different, non-tipped occupation for the same employer (for example, an employee was a server and a maintenance person), the employee is said to have “dual jobs” and must be paid the cash minimum wage when engaged in the non-tipped occupation. The DOL also recognized that there were tipped occupations that required non-tip-generating duties not amounting to a separate occupation. For example, a server may spend time cleaning and setting tables, rolling silverware, stocking service areas, and filling condiment containers. In these situations, the DOL applied the 80/20 rule, where these related side duties could not exceed 20 percent of the employee’s time in order for the employer to utilize the tip credit.

Many employers found the 80/20 rule unworkable since it required them to constantly monitor and account for the duties of tipped employees. The 80/20 rule was challenged by employers in the courts as contrary to the regulations and the DOL’s prior guidance. Recently, the en banc Ninth Circuit Court of Appeals sided with the DOL on this issue and upheld the 80/20 rule.

Today, the DOL changed course and reissued a short-lived opinion letter abandoning the 80/20 rule. The opinion letter gives employers clearer guidance on what is related side work and states that employers are no longer required to track the time spent on side work as long as such work is “performed contemporaneously with the duties involving direct service to customers or for a reasonable time immediately before or after performing such direct-service duties.” Employers can look to Occupational Information Network (O*NET) lists or Title 29 of the Code of Federal Regulations, Section 531.56(e) for what is considered directly related to the tip-producing duties of an occupation. Maintaining the “dual jobs” distinction, the opinion letter stated that employers “may not take a tip credit for time spent performing any tasks not contained in the O*NET task list” unless the tasks are de minimis as defined by the DOL regulations in Title 29 of the Code of Federal Regulations, Section 785.47.

While there are still ambiguities (e.g., what constitutes related side work and direct service for certain positions, what is “a reasonable time” before or after direct service), the opinion letter brings welcomed clarity and a common sense framework for hospitality employers.