The United States Department of Labor announced that it will revoke an Obama-era regulation prohibiting restaurants from pooling customers tips with back-of-the-house workers. Although this change could have a significant impact in many areas of the country, New York State still has restrictions on who can participate in a tip pool.
The Legal History
Unless state laws require higher amounts, as is the case in New York State, the Fair Labor Standards Act (“FLSA”), a federal law, requires employers to pay employees at least the federal minimum wage rate of $7.25 per hour worked. The FLSA allows restaurants to pay employees who regularly receive tips as little as $2.13 per hour if they make the difference (i.e., $5.12) per hour in tips. The $5.12 difference is known as a “tip credit,” which is a privilege that the FLSA gives to restaurants. The FLSA also allows restaurants to require tip-receiving employees to pool their tips for distribution among employees.
Before 2011, there was much debate about which employees could participate in a restaurant’s mandatory tip pool. Some courts concluded that only employees who regularly receive tips and who spend at least 80% of their time serving customers at tables, known as “food service employees,” could participate in a tip pool. These courts concluded that if a restaurant forced food service employees to share their tips with non-service employees, such as cooks or other back-of-the-house employees, then the restaurant violated the FLSA and had to pay back tips and other wages to the food service employees. Other courts reached the opposite conclusion. They reasoned that any employee should be allowed to participate in the mandatory tip pool as long as the restaurant did not take a tip credit and, instead, paid its employees the full minimum wage rate ($7.25 under federal law, but higher under New York State law).
In 2011, the US Department of Labor enacted a regulation that back-of-the-house employees cannot participate in a tip pool with front-of-the-house food service employees regardless of whether the restaurant takes a tip credit. The 2011 regulation mirrors the New York Labor Law and the New York State Department of Labor’s Hospitality Wage Order, which limit tip pooling to food service employees only. In New York, back-of-the-house employees can never participate in a mandatory tip pool with front-of-the-house food service employees.
The Recent Change and Effect in New York
Under the Trump Administration, the US Department of Labor has announced that it will revoke the 2011 regulation. The effect of this revocation is that in many areas of the country, but not in New York, restaurants that do not take a tip credit can require front-of-the-house employees to share their tips with any other restaurant employee. Note that, restaurants that take a tip credit against front-of-the-house food service employees still cannot require them to share their tips with back-of-the-house workers.
These changes at the federal level have no impact in New York, whose laws and regulations already require that tips left by customers be given to front-of-the-house employees. Under New York laws, food service employees can be required to share their tips only with other food service employees. For example, a tip pool in a New York restaurant is lawful if it is composed of non-managerial bartenders, servers, bussers, and runners. However, it would be unlawful for a New York restaurant to require servers and bartenders to share tips with a cook or manager.