29 usc 203(m)

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The FLSA regulates tip pool participation by limiting pool participants to employees who are “customarily and regularly tipped” as set forth in DOL guidance and interpreted by the courts. While the role of different positions in the service process (going to the question of whether they are “customarily and regularly” tipped) can be hotly contested, the…

As both lawyers and non-lawyers understand, overtime wages customarily are paid in cash, notwithstanding that the definition of “wages” under the FLSA incorporates “board, lodging, or other facilities.” 29 U.S.C. § 203(m). Employers providing non-monetary benefits to employees sometimes argue that such benefits are “facilities” within the meaning of the statute and thus should be credited against…

Employers who maintain a tip pool are likely aware that, depending on the employer’s state of operation and prevailing law, such a tip pool typically can consist only employees who are both “customarily and regularly” tipped and who are not themselves “employers” or those with employer authority. Last year, we discussed a court’s recognition of the…

Tip pool participation under the FLSA, like classification of employees as exempt or non-exempt, turns on the duties of those participating in the tip pool, not their job titles. An example of this analysis is a recent Florida federal court decision rejecting a plaintiff server’s  challenge to the inclusion in the tip pool at a Ruth’s Chris…