Voglio sapere a riguardo di…

52974

Federal Register / Vol. 86, No. 183 / Friday, September 24, 2021 / Rules and Regulations
for any purposes regardless of whether the employer claims a tip credit. This includes prohibiting managers or supervisors from keeping employees tips. The CAA also amended section 16e2 of the FLSA to give the Department discretion to impose civil money penalties CMPs of up to $1,100
when employers unlawfully keep employees tips. On December 30, 2020, the Department issued a final rule 2020
Tip final rule that updated the Departments tip regulations to implement the CAA amendments. The 2020 Tip final rule also made other changes to the Departments regulations, including revising the definition of willful in the Departments CMP
regulations.
On March 25, 2021, the Department published a notice of proposed rulemaking CMP NPRM in the Federal Register, 86 FR 15817, proposing to withdraw and repropose two portions of the 2020 Tip final rule and seeking comment on whether to revise another portion of the 2020 Tip final rule. The Department proposed to withdraw and repropose: 1 The portion of the 2020
Tip final rule incorporating the CAAs new provisions authorizing the assessment of CMPs for violations of section 3m2B of the Act; and 2 the portion of its CMP regulations addressing willful violations. The Department subsequently finalized a delay of the effective date of these portions of the rule until December 31, 2021 to allow the Department to review these and one other portion of the 2020
Tips final rule. In the CMP NPRM, the Department also sought comment on whether to revise certain aspects of the 2020 Tip final rule that apply to managers or supervisors who perform tipped work and went into effect on April 30, 2021. Section 578.1, as revised by the 2020 Tip final rule, at 85 FR
86756, and the effective date of which the Department also delayed, will go into effect on December 31, 2021.
After considering the comments, the Department has decided to adopt the NPRMs proposed changes to the portion of the 2020 Tip final rule incorporating the CAAs new provisions authorizing the assessment of CMPs for violations of section 3m2B of the Act, and the portion of its CMP
regulations addressing willful violations. The Department has also decided to modify portions of the 2020
Tip final rule addressing managers and supervisors who perform tipped work.
The final rule modifies the CMP
provisions for violations of 3m2B
included in the 2020 Tip final rule by withdrawing regulatory language in 29
CFR 578.3, 578.4, 579.1, 580.2, 580.3,
VerDate Sep<11>2014

16:01 Sep 23, 2021

Jkt 253001

and 580.12 that limited assessment of CMPs for section 3m2B violations to only repeated or willful violations.1
This modification upholds the Departments statutorily-granted discretion with regard to section 3m2B CMPs and aligns the Departments regulations with the statutory text. At the same time, the final rule adopts the same rules, procedures, and amount considerations for CMPs for violation of 3m2B as the Department applies for other FLSA
CMPs, and therefore preserves consistent enforcement procedures that are familiar to the Department and the public.
The final rule also modifies the amendments made by the 2020 Tip final rule to the portion of the Departments CMP regulations at 29 CFR 578.3c2
and 3 and 29 CFR 579.2 addressing when a violation of section 6 or 7 of the FLSA is willful. Specifically, the rule modifies these regulations by clarifying that multiple circumstances, not just the circumstance identified in 578.3c2
and 3, can be sufficient to show that a violation is willful because it is knowing or is done with reckless disregard for whether the conduct violates the FLSA and by reinserting language addressing the meaning of reckless disregard. These revisions further align the Departments regulations with applicable precedent and how the Department litigates willfulness and provide improved guidance on circumstances where employers conduct may be willful.
In addition, the Department has decided to modify 531.54c3 and d, which currently provide that an employer may not include managers and supervisors in tip pools or sharing arrangements. The final rule clarifies that while managers and supervisors may not receive tips from mandatory tip pools or tip sharing arrangements, managers or supervisors are not prohibited from contributing tips to eligible employees in mandatory tip pools or sharing arrangements. The Department is also modifying language in 531.52, as amended by the 2020 Tip final rule, which currently explains that it is not a violation of section 3m2B
when a manager or supervisor keeps tips that the manager or supervisor receives directly from customers based on the service that the manager or supervisor directly provides. The modified language clarifies that a manager or supervisor may keep tips only when the tip is based on a service 1 The Department also finalizes as proposed the revision to 580.18b3, which corrected a technical error.

PO 00000

Frm 00024

Fmt 4700

Sfmt 4700

the manager or supervisor directly and solely provides. Thus, under the Departments tip regulations as revised by this final rule, when a manager or supervisor directly receives tips for services the manager or supervisor directly and solely provides, an employer may allow the manager or supervisor to keep those tips, and may also require the manager or supervisor to share some portion of the tips with other eligible employees. The final regulations reflect the reality that some managers or supervisors perform work for which they receive tips, while ensuring that managers and supervisors do not keep any portion of other employees tips in violation of section 3m2B.
II. Background A. Tips and Tip Pooling Section 6a of the FLSA generally requires covered employers to pay employees at least the federal minimum wage, which is currently $7.25 per hour.
29 U.S.C. 206a. Section 3m2A
allows an employer to satisfy a portion of its minimum wage obligation to any tipped employee by taking a partial credit toward the minimum wage based on tips the employee receives. 29 U.S.C.
203m2A. An employer may take a tip credit only if, among other requirements, the tipped employee retains all the tips he or she receives. Id.
An employer taking a tip credit is, however, allowed to require tipped employees to participate in a mandatory, traditional tip pool 2 in which tipped employees share tips with other employees who customarily and regularly receive tips. 29 U.S.C.
203m2A. The employee must retain sufficient tips to make up the difference between the cash wage paid and the minimum wage. Id.
In 2011, the Department issued regulations interpreting what is now section 3m2A to prohibit all covered employersregardless of whether the employer takes a tip creditfrom using employees tips other than as a credit against its minimum wage obligation to the employee, or in furtherance of valid traditional tip pools. See 76 FR 18832, 29 CFR 531.52 2011; 29 CFR 531.54
2 The Department uses the term tip pool to describe any scenario in which a tip provided by a customer is shared, in whole or in part, between employees. The Department recognizes, however, that in some workplaces or under state laws, the term tip pooling may refer to a narrower set of practices, and that employers and workers may use other termsfor example tip out, tip sharing, or tip jarto describe certain practices regarding transferring tips between employees. See 84 FR
53961.

E:FRFM24SER1.SGM

24SER1