The DOL has now largely abandoned
the 80/20 Rule. The Opinion Letter
recognizes that the 80/20 Rule resulted
in confusion and that it would be difficult,
if not impossible, for employers to
account for the exact amount of time each
employee spends on every "related" task
performed. The Opinion Letter states that,
going forward, the DOL does "... [n]ot
intend to place a limitation on the amount
of duties related to a tip-producing
occupation that may be performed, so long
as they are performed contemporaneously
with direct consumer-service duties..."
The Opinion Letter also provides
guidance for an employer to determine
which duties are "related" versus "un-
related" to a tip-producing occupation.
The DOL has taken the position that
"[d]uties listed as core or supplemental for
the appropriate tip-producing occupation
in the Tasks section of the Details
report in the Occupational Information
Network ... shall be considered directly
related to the tip-producing duties of
that occupation..." However, such duties
must be performed contemporaneously
to customers or for a reasonable time
immediately before or after direct service
duties are performed. Clarifying the
question asked above, sweeping and
mopping floors, vacuuming the carpet and
tidying up a server station are included
in the related duties for waiters and
waitresses.
As a result, as long as the duties are
performed contemporaneously with duties
involving direct service to customers or
for a reasonable time immediately before
or after such direct-service duties, it does
not matter whether a service employee
spends more than 20 percent of working
time performing related, non-tipped
work. On the other hand, employees
cannot spend an unlimited amount of
time performing such work while being
paid the service rate. If an employee
mops floors, vacuums and cleans for an
unreasonable amount of time before and
after serving guests, the employee will
arguably no longer be performing a tipped
occupation during that time and could be
deemed to have dual jobs cleaner and
server entitling the employee to payment
non-tipped cleaning work.
Notwithstanding the issuance of
the Opinion Letter, attorneys should
caution clients against changing their
compensation structures for tipped
employees. Instead, it is more sensible to
wait to see how the change plays out in
the courts and the legislature, both state
and federal. At a minimum, related work
performed before and after direct service
duties should continue to be limited to
20 percent of working time. Many states
provide a prevailing employee in a wage
claim with a statutory entitlement to
multiple damages and attorney's fees, so it
is better to be overly cautious than risk a
potential wage violation.
3 Dewey, Caitlin, Maine tried to raise its minimum wage.
June 27, 2017.
2019.