by Matthew Dimick, Professor of Law at the University of Buffalo School of Law
On December 5, the Trump administration’s Department of Labor (DOL) announced its Notice of Proposed Rulemaking regarding tip regulations under the Fair Labor Standards Act (FLSA). The proposed rule would rescind an Obama-era regulation that bans employers from pooling tips received by servers and sharing them with non-tipped employees like cooks, dishwashers, and other back-of-the-house employees. According to the Trump DOL, “These ‘back of the house’ employees contribute to the overall customer experience, but may receive less compensation than their traditionally tipped co-workers.” Unfortunately, while sounding egalitarian, it is anything but. In fact, the proposed rule does not require tip-pooling employers to share these tips with any employees. As long as employees are paid the minimum wage, employers could legally pocket these tips for themselves.