The 80-20 rule that has protected restaurant servers from excessive non-tipped work is the Trump Administration’s latest target.
“The Trump administration is trying once again to tweak the rules that govern how tipped workers are paid. This time, their proposal would probably result in servers doing more nontipped work and at a lower pay rate than previously required.
On Monday, the Labor Department rolled out a new proposed ‘tip rule’ clarifying how employers can divvy up gratuities among their staffs. While most of the plan had been hashed out last year in a compromise with congressional Democrats, it includes a separate recommendation that has angered worker advocates: the elimination of the ’80-20 rule.’
In most states, it is legal to pay servers and bartenders a sub-minimum wage, sometimes as low as $2.13 per hour, so long as tips get their hourly rate up to the regular minimum wage. Under the 80-20 rule, a tipped worker can be required to do nontipped work at the lower rate ― like folding napkins and filling up salt shakers ― so long as it doesn’t eat up more than 20% of the shift. If it does, then the worker would have to be paid the full minimum wage ― at least $7.25 per hour, depending on the state ― for that time.
The 80-20 rule has been around since the late 1980s. The administration of George W. Bush tried to gut it at the end of his presidency, but the administration of Barack Obama quickly restored it.
The Labor Department, now headed by recent Trump appointee Secretary Eugene Scalia, wants to get rid of that explicit 20% time limit. Instead, the rule would simply require that the nontipped work be done ‘contemporaneously’ or “within a reasonable time immediately before or after” the tipped work. So long as an employer met that vague criteria, there would be no precise cap on the nontipped work if the administration’s proposal becomes final.
For those who support strong workplace regulations, the language of the proposed rule is far too squishy and could lead to abuse.
‘Unfortunately, today, DOL is proposing regulations that make it perfectly legal for employers to take advantage of tipped workers,’ Judy Conti, with the left-leaning National Employment Law Project, said in a statement. ‘We are extremely disappointed, though not surprised, that DOL is again doing the bidding of corporate America rather than the workers it is supposed to protect.’
The 80-20 rule is just the sort of regulation that employer groups and the Trump administration would hate, since it requires restaurants and other tipped businesses to keep track of the work employees are doing to avoid lawsuits.”
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