In a fitting opening to baseball season, the Labor Department has been fully on the mound and pitching a lot of information into the public arena in the past two weeks. So much so that while tracking one development, several others may have whizzed by. Here is a recap to help keep track of some highlights.
An amendment to the Fair Labor Standards Act regarding the tip credit was tucked into page 2,025 of the budget legislation, better known as the Consolidated Appropriations Act, 2018 (Pub. L. No. 115-141), which was signed into law March 23 by President Donald Trump.
A Field Assistance Bulletin (FAB 2018-3), issued April 6 by the Labor Department’s Wage and Hour Division, shed some light on the amendment and some terms it used.
In the legislation under Title 12—Tipped Employees, employers may not keep employees’ tips for any purpose. Additionally, managers and supervisors must not keep any part of employees’ tips, even if the employer receives a tip credit. Employers that violate the provision are liable for an amount equal to the sum of any tip credit taken and all tips unlawfully kept, plus an equal amount in damages.
The bulletin defined what is meant by managers and supervisors, positions that were not defined in the amendment.
Managers and supervisors must not participate in tip pools, the amendment said. The white-collar exemption duties test is to be used to determine whether a worker qualifies as a manager or supervisor, the Labor Department said. The duties test requires the worker to have the authority to hire and fire, to have management as a primary duty, and to supervise at least two employees.
So, the bulletin’s manager and supervisor definitions are in play at least until the Wage and Hour Division issues rulemaking and according to the bulletin, the division “expects to proceed with rulemaking to fully address the impact of the 2018 amendments.”
Separately, three new opinion letters, issued April 12 by the division, addressed the compensability of travel work time (FLSA2018-18), health-related rest breaks (FLSA2018-19), and whether lump-sum payments are earnings for garnishment purposes (CCPA2018-1NA).
A fact sheet, issued April 12 by the Wage and Hour division, clarifies what jobs within higher education institutions qualify for white-collar exemptions from minimum-wage and overtime requirements.
Fact Sheet No. 17S: Higher Education Institutions and Overtime Pay Under the Fair Labor Standards Act (FLSA) addresses positions included teachers, coaches, student employees, and professional, administrative, and executive employees. It also addresses compensable time within public universities.
Also on April 12, at a congressional hearing to address the fiscal 2019 Labor Department budget, Labor Secretary Alexander Acosta offered testimony and limited guidance regarding the status of overtime rulemaking and thoughts on proposed tip-pool rulemaking that was issued in December.
Regarding when final overtime rules may be expected, Acosta offered that the Labor Department is working diligently on the rule and that his hope is that “we are faster than previous administrations,” but wouldn’t commit to a specific timeline.
Regarding also offered that he feels that the tradeoff between a tip pool that shares between the front of the house and the back of the house in return for making sure as a matter of law that employers cannot keep tips, is a win-win.
Take a free trial of Bloomberg BNA’s Payroll Decision Support Network , your one-stop resource for reliable, up-to-date guidance and analysis in every area of payroll administration and compliance.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)