Under the FLSA (29 USC 203(m)), an employer must pay a tipped worker at least $2.13 per hour but may count tips the worker actually receives as a credit against the otherwise payable minimum wage of $7.25 per hour. A Dept. of Labor regulation (29 C.F.R. § 531.56(e)) provides that when a worker performs two distinct jobs for the employer, one tipped, the other not, the employer cannot take the tip credit against hours the employee works at the non-tipped job. This decision refuses to defer to recent Dept. of Labor informal interpretations of the dual job regulation that changed the focus from distinct jobs each with their associated tasks to a time-per-task approach, dividing tasks into three categories (tip-generating, not tip-generating, but related, and not related) and denying a tip credit for not related tasks and to related tasks if they exceed 20% of the worker’s time in a week. According to this decision, so long as the tasks are part of the tipped job, the employer can take the tip credit.
Ninth Circuit Court of Appeals (Ikuta, J.; Paez, J., concurring in part & dissenting in part; September 6, 2017; 2017 WL 3880742