Work in the Time of COVID-19: FAQs for Employers

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The “80/20 Rule,” which provided guidance to employers for when they must pay tipped employees minimum, rather than a tipped hourly wage, was recently abandoned by the United States Department of Labor (“DOL”).  First published in a 1988 DOL Handbook, the 80/20 Rule states that where a tipped employee spends a “substantial amount of time (in excess of 20 percent) performing general preparation work or maintenance, no tip credit may be taken for the time spent in such duties.”  A “tip credit” allows an employer to pay tipped employees $2.13/hour and receive credit for the employee’s tips to make up the difference between the $2.13/hour tipped wage and the federal minimum wage of $7.25 an hour.  To qualify as a “tipped employee,” the employee must earn more than $30 per month in tips.  Under the 80/20 Rule, an employer can take the tip credit for up to 20% of a tipped employee’s “time spent in duties related to the tipped occupation, even though such duties are not by themselves directed toward producing tips.”  On February 15, 2019, the DOL issued a revised Handbook abandoning this 80/20 Rule, and instead stating that an employer is permitted “to take a tip credit for any time the employee spends in duties related to the tipped occupation.”

Despite the DOL’s new guidance abandoning the 80/20 Rule, a federal court in Lynchburg, Virginia, recently applied the Rule to deny an employer’s motion to dismiss.  In Spencer v. Macado’s, Inc.,[1] the plaintiffs consisted of current and former servers and bartenders of Macado’s who alleged, among other claims, that they performed non-tipped “side duties” more than 20% of their time at only a tip credit wage instead of the applicable minimum wage.  Macado’s argued that the claim must be dismissed given the DOL’s abandonment of the 80/20 Rule because the side duties the plaintiffs performed fell within the job duties the DOL’s new interpretation maintains tipped employees may perform without limitation.

The court rejected Macado’s argument and refused to give deference to the DOL’s guidance.  The court based this refusal on “the abrupt change in a longstanding agency interpretation, the extent to which the new interpretation’s timing suggests political motivations rather than any genuine interpretive change, and the extent to which DOL offered no ‘evidence of any thorough consideration for reversing course’ on the twenty percent rule.”  In so ruling, the court concluded that the “new agency interpretation is no impediment to the Court applying the twenty percent rule in this case.”

In light of the Spencer ruling, as well as several cases that opinion cites which have also refused to abandon the 80/20 Rule, employers should proceed with caution when deciding whether to adopt new wage policies that align with the DOL’s 2019 Handbook.  Considering that the DOL’s prior interpretation was in place for thirty years, numerous jurisdictions may be hesitant to discard the 80/20 Rule on to “the ash heap of history.”  The opinion highlights the critical point that employers must stay updated on the courts’ interpretation and application of agency opinions and refrain from blindly following non-binding guidance.  If shifts in future administrations continue to significantly change agency guidance, courts may be increasingly hesitant to afford agency interpretations deference.

[1] No. 6:18-cv-5, 2019 U.S. Dist. LEXIS 112966 (July 8, 2019).

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