Gratuities are often helpful for both employees and their employers: tips supplement a worker’s income, and federal law and the laws of most states allow employers to credit a portion of a worker’s tips toward the company’s minimum wage obligations. But what exactly is a tip and how do employers take this so-called “tip credit?”
What is a tip or gratuity?
The Fair Labor Standards Act (“FLSA”) defines a tip as “a sum presented by a customer as a gift or gratuity in recognition of service performed[.]” 29 C.F.R. § 531.52. Tips are separate from the payment due for the service, and whether to tip and in what amount is in the sole decision of the customer. If a customer provides a tip, it is generally the property of the tipped employee. Employers, including supervisors, may not take any portion of employee tips, except employers may offset reasonable processing fees from a tip provided by credit card so long the deduction does not reduce the employee’s hourly wage below the minimum wage. 29 U.S.C. § 203(m)(2)(B); 29 C.F.R. §§ 531.52, 531.53. However, note that some states (e.g., California) prohibit employers from deducting credit card processing fees from employee tips.
Tips a should not be confused with mandatory service or administrative charges (“service charges”) that an establishment imposes on customers, and which are increasingly common in the restaurant industry. Service charges are not tips because they do not involve customer discretion. Further, service charges are the employer’s property and part of its taxable gross receipts.
If the employer distributes all or some portion of the charges to its employees, the amount distributed is treated as employee wages and not gratuities. Although service charges distributed to employees can help satisfy an employer’s minimum wage requirements under the FLSA, service charges cannot count as tips for the purposes of satisfying the tip credit. See 29 C.F.R. § 531.55.
What is a tip credit?
The FLSA allows employers to pay “tipped employees” a reduced hourly wage (currently $2.13 per hour) so long as the cash wage plus tips received by an employee satisfy the federal minimum wage (currently $7.25 per hour). The “tip credit” is the portion of an employee’s tips the employer can apply toward its minimum wage obligations. 29 U.S.C. § 203(m); 29 C.F.R. § 531.59(b).
What is a tipped employee?
Employers may take a tip credit for employees who work in an occupation in which they customarily and regularly receive more than $30 per month in tips. 29 U.S.C.A. § 203(t). These “tipped employees” can be full-time, part-time, permanent, or temporary employees. and usually include wait staff, bartenders, and hairdressers, but not dishwashers, cooks, or janitors. 29 C.F.R. §§ 531.56(a), 531.57.
The “customarily and regularly” standard provides some flexibility for employers to account for slow months. Tipped employees can sometimes receive less than $30 in tips in a particular month but still meet the standard, so long as they receive the required amount in tips more than occasionally. See 29 C.F.R. § 531.57.
What if the tipped employee performs multiple roles?
Tipped employees are considered to have “dual jobs” if they are employed in two occupations for the same employer (e.g., a janitor who is also a bartender). If an employee has dual jobs, the FLSA’s regulations permit employers to take a tip credit for only those hours the employee spends working in their tipped occupation (e.g., the time spent working as a bartender). 29 C.F.R. § 531.56(e).
However, work that is part of an employee’s tipped occupation is not strictly limited to tip-producing work such as making and serving a drink. In December 2021, the Department of Labor promulgated a rule clarifying that employers may take a tip credit for tip-producing work and directly supporting work (e.g., restocking the bar or rolling silverware), provided the employee does not perform the directly supporting work for a substantial amount of time. The rule defines “substantial” as either more than 20% of the employee’s workweek or a continuous period of more than 30 minutes. In other words, according to this regulation, employers cannot take a tip credit for any directly supporting work that exceeds the 20% threshold or exceeds 30 continuous minutes. This regulation is currently facing a challenge in the courts, with restaurant associations contending that the rule is contrary to the FLSA.
What are the employer’s notice and recordkeeping obligations?
Before taking a tip credit, the FLSA’s regulations require employers to notify all tipped employees of the following:
- the amount of cash wage the employer is paying the tipped employee;
- the additional amount claimed by the employer as the tip credit;
- the tip credit claimed by the employer cannot exceed the amount of tips actually received by the employee;
- that all tips received by the tipped employee are to be retained by them except for a valid tip pooling arrangement limited to employees who customarily and regularly receive tips; and
- that the tip credit will not apply unless the employee has been informed of these provisions.
29 C.F.R. § 531.59(b). Employers may provide the tip credit notice orally or in writing but should require employees to sign an acknowledgement that they received and understood the notice and maintain copies of the signed acknowledgment in employee personnel or payroll files to document compliance. Generally, employers should provide the tip credit notice to new employees upon hire and to existing employees whenever there are changes to the minimum wage, cash wage, tip credit, or mandatory tip pool requirements (if appliable). Employers who take a tip credit without providing the proper advanced notice may be required to pay tipped employees the difference between the cash wage and the minimum wage for all hours worked before the employer provided the notice.
In addition to providing advanced notice, employers who take a tip credit must maintain and preserve payroll records that contain all the information required for non-exempt employees under 29 C.F.R. § 516.2(a), and:
- a symbol, letter, or other notation in their pay records that identities each employee receiving a wage determined in part by tips;
- the weekly or monthly amount of tips reported by each employee to the employer;
- the amount of any tip credit taken, up to the maximum permitted by the FLSA (note: employers must notify employees in writing each time the tip credit amount changes);
- the number of hours worked each workday in which the employee does not receive tips (i.e., worked in any non-tipped occupation) and the total daily or weekly straight-time pay for such hours; and
- the hours worked each workday in any tipped occupation and the total daily or weekly straight-time earnings for such hours.
29 C.F.R. § 516.28(a).
States Laws on Tip Credit
State and local laws may have different rules when it comes to tip credits. For example, some states allow employers to take a tip credit, but require them to pay a higher cash minimum wage to employees. Other states may provide different definitions for a tipped employee or permit tip credits under different circumstances than the FLSA.
Currently, seven states prohibit employers from taking a tip credit: Alaska, California, Minnesota, Montana, Nevada, Oregon, and Washington. Further, in November 2022, District of Columbia voters approved Initiative 82, which will phase out the tipped minimum wage by July 2027. Although the D.C. Council recently postponed the initial increase to the minimum regular cash wage (and decrease to the maximum tip credit) from January 1, 2023, until May 1, 2023, the rest of the schedule remains unchanged.
Employers should follow the applicable law that gives employees the highest cash wage. Please reach out to an attorney at Epstein Becker & Green, P.C., to ensure compliance with the unique requirements of your state.