US Department of Labor Says Cooks & Dishwashers Can Now Participate in Certain Tip Pools

The U.S. Department of Labor (DOL) has released guidance clarifying federal law on tip pooling. The guidance was issued in response to a federal law that amended the federal Fair Labor Standards Act’s (FLSA) tip pooling rules. The DOL guidance states that:

  1. Employers are prohibited from keeping tips received by their employees, regardless of whether the employer takes a tip credit against the minimum wage for its employees.
  2. Federal regulations no longer prohibit tip pooling when employers pay tipped employees at least the full federal minimum wage and do not claim a tip credit.
  3. Employers who pay at least the full federal minimum wage are no longer prohibited from allowing employees who are not customarily and regularly tipped—such as cooks and dishwashers—to participate in tip pools. However, managers and supervisors are prohibited from participating in tip pools.

However, employers should remember that some states have different rules concerning tip pools and tip credits. When there are differences between state and federal laws in this area, the law more favorable to the employee generally applies.

Click here to read the DOL guidance.

Originally posted by

Oregon Law That Imposes Scheduling and Working Hours Obligations on Employers Takes Effect July 1, 2018

Senate Bill 828, enacted by the 2017 Legislative Assembly, establishes work scheduling standards for certain employers in retail, hospitality, or food services industries that have at least 500 employees worldwide. The majority of the bill becomes effective July 1, 2018.
Q. What is a covered employer?
A.  Covered employers include employers and successor employers in retail, hospitality, or food services establishments that employ 500 or more employees worldwide, including chains and integrated enterprises.
To determine the number of employees employed by an employer, the calculation is based on the average number of employees employed on each work day during each of 20 or more workweeks in the current calendar year or immediately preceding calendar year.
Q. Who is a covered employee?
A. An employee who is employed in a retail establishment, a hospitality establishment, or a food service establishment that provides services related to retail trade, hotels and motels, or food services.
Q. Are any employees not covered?
A. Yes. Salaried employees who are exempt from minimum wage, workers supplied by a worker leasing company,and employees of a business that provides services to or on behalf of an employer, are not covered by this law.
Q. What does the law require?
A. Good faith estimate of work schedule.  Employers must provide a new employee a written good faith estimate of the work schedule at the time of hire that:
·       States the median number of hours the employee is expected to work in an average month;
·       Explains the voluntary standby list;
·       Explains whether the employee who is not on a standby list may expect to work on-call shifts, and if so, sets forth an objective standard for when an employee may be expected to work on-call shifts if the employee is not on the standby list; and
·       May be based on prior year schedule if it is a good-faith estimate of seasonal or episodic work.
Voluntary standby list. Employers may maintain a voluntary standby list of employees willing to work additional hours due to unanticipated customer needs or unexpected absences if listed employees have requested or agreed in writing and the employer notifies each employee, in writing:
·       That the list is voluntary and lays out how to be removed from the list;
·       How the employer will notify standby list employees of additional hours and how to accept the additional hours;
·       That the employee is not required to accept the additional hours offered; and
·       That an employee on the standby list is not eligible for additional compensation for changes to the employee’s written work schedule resulting from acceptance of additional hours as a result of being on the list.
Advance notice of work schedule. The employer must provide an employee with a work schedule, in writing, at least seven calendar days before the first day on the schedule (14 days on and after July 1, 2020). The work schedule must be posted in a conspicuous and accessible location.
The employer must provide a written work schedule that runs through the last date of the posted schedule to:
·       A new employee on or before first day of work; or
·       An existing employee on the first day of work after a leave of absence.
The written work schedule must include all work shifts and on-call shifts for the work period.
If the employer requests changes to the written work schedule after the advance notice is given:
·       Employer must provide the employee with timely notice of the change; and
·       The employee may decline any work shifts not included in the employee’s written work schedule.
At any time after the advance notice has been given, an employee may request in writing that the employer add the employee to work shifts or on-call shifts without penalty to employer.
Right to rest between shifts. Unless the employee requests or consents to work such hours, the employer may not schedule or require an employee to work during:
·       The first 10 hours following the end of a previous calendar day’s work or on-call shift; or
·       The first 10 hours following the end of a work or on-call shift that spanned two calendar days.
If an employee works during the first 10-hour periods as listed above, the employer must compensate the employee for each hour or portion of an hour that the employee works at the rate of one and one-half times the employee’s regular rate of pay. This premium pay provision does not apply to any hour or portion of an hour worked during which the employee is providing offsite repair assistance to a motorist with a disabled vehicle (roadside assistance).
Right to input into work schedule. At time of hire and during employment, an employee may identify any limitations or changes in work schedule availability and may also request not to be scheduled for work shifts during certain times or at certain work locations. While an employer may not retaliate against an employee for making such a request, the employer is under no obligation to grant the employee’s request.
Compensation for work schedule changes. An employer is required to provide compensation to an employee for each employer-requested change that occurs to a written work schedule without advance notice (seven days effective July 1, 2018; 14 days starting July 1, 2020), as follows:                                         
·         One hour at the regular rate of pay, in addition to wages earned when the employer:
o   Adds more than 30 minutes of work to the employee’s shift;
o   Changes the date or start time or end time of the employee’s work shift with no loss of hours; or
o   Schedules the employee for an additional work or on-call shift.
·         One-half times the employee’s regular rate of pay, per hour, for each scheduled hour that the employee does not work when the employer:
o   Subtracts hours from the employee’s work shift before or after the employee reports for duty;
o   Changes the date or start time or end time of the employee’s shift, resulting in a loss of work shift hours;
o   Cancels the employee’s work shift; or
o   Does not ask the employee to perform work when the employee is scheduled for an on-call shift.
  Q. What are the notice and posting requirements?
A. Employers must display a poster, which is developed by the Bureau of Labor and Industries, giving notice of the rights and responsibilities of this law. The poster must be posted in a conspicuous place at the workplace or provided on an individual basis if displaying the poster is not feasible. To access the poster, you may click on our LIST OF ADDITIONAL POSTING REQUIREMENTS then click on your state. All In One Poster Company has provided this list of downloadable notices that may be posted alongside our Oregon and Federal Combination Poster
Also, the employer is required to post the written work schedule in a conspicuous and accessible place, in English and in the language the employer typically uses to communicate with the employees.
Employers are required to provide employees on a standby list notice of additional hours by:
·       In-person conversation;
·       Telephone call;
·       Email;
·       Text message; or
·       Other electronic or written format.
Q. What if an employee wants to work extra shifts?
A. At any time after the advance notice of written work schedule is made, an employee may request in writing that the employer add the employee to more shifts. Changes to the written work schedule resulting from these written requests are not subject to the advance notice requirements of this law.
Q. What if an employee asks not to be scheduled?
A. An employee may decline any work shifts not included in the employee’s written work schedule and may request, in writing, to be added to one or more work shifts or on-call work shifts. In addition, an employee may request not to be scheduled for work shifts during certain times or at certain locations, but an employer may require the employee to provide reasonable verification of the need for such a request. An employer may not retaliate against an employee for making a request to not be scheduled, but is under no obligation to grant the employee’s request to be taken off shifts.

Governor approves tipped minimum wage increase

PROVIDENCE, R.I. (WPRI)- Governor Gina Raimondo has given thousands of Rhode Island residents a raise.201506558869d56ec02

The governor signed a bill into law yesterday that raises the state’s tipped minimum wage from $2.89 an hour to $3.89 an hour over the next year and a half. This is Rhode Island’s first increase in the tipped minimum wage in 20 years. The state currently has the lowest wage for tipped workers in all of New England.Governor Raimondo says the increase will help more than 22,000 tipped workers in the state. “These are hard-working people. They deserve a livable wage. My job is to make Rhode Island a place of opportunity for everybody and, if you work full-time, you shouldn’t live in poverty. So, I feel great that we increased the minimum wage,” said Raimondo.

Advocates for restaurant workers say the increase still does not go far enough.

“Even with this increase, servers are still going to be paid 31% of the full minimum wage, which is still less. That’s a second tier and that’s unacceptable in a democratic society, right?,” said Michael Araujo of ROC United.

Governor Raimondo says the change will be easier on local businesses since the dollar increase is spread out over 18 months.

WPRI 12 Eyewitness News