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Federal Register / Vol. 86, No. 183 / Friday, September 24, 2021 / Rules and Regulations pools. In addition, the Department asked general questions about managers and supervisors and tipped work, including: 1 How commonly managers and supervisors perform tipped work;
2 whether, prior to the CAA, managers and supervisors who perform tipped work typically participated in tip pools or tip sharing arrangements; and 3
whether it is common for tips provided for work performed by a manager or supervisor to be commingled with other employees tips.
1. Managers and Supervisors May Keep Tips They Directly Receive for Service They Directly and Solely Provide Commentersrepresenting both employers and employeesgenerally noted that it is not unusual for managers and supervisors in service industries to perform tipped work. See Werman Salas; NRA. NRA stated that, in the restaurant industry, managers and supervisors take orders, and serve food . . . on a daily basis throughout the country. NRA also explained that, in some circumstances, a manager might be the only individual serving tables because it is a slow day or because it is an event outside the restaurant location and only supervisors are managing it. One brewery employer noted that its bar manager has three jobs codesmanager, bartender, and brewery assistantand that there are many times when the manager must change roles and work under a bartender job code for 4 hours of a 6
hour shift. The commenter further noted that even in large restaurants, if a bartender doesnt show up for work, the manager may be forced to stop managing and become the bartender for a night. Commenters also indicated that managers and supervisors are performing more tipped work as a result of the COVID19 pandemic. The Employment Rights Center commented that, as a result of the pandemic, a manager might, for example, be more likely to serve an unexpected in-person table, while a server is staffing a takeout counter or preparing to-go orders. ROC
United stated that managers and supervisors at full-service restaurants have performed tipped work on a daily and hourly basis over the last year.
Nearly all commenters supported regulatory language allowing managers and supervisors who receive their own tips for services they directly provide to keep those tips. See, e.g., Economic Policy Institute EPI; Employee Rights Center; Public Justice Center; Kentucky Equal Justice Center; National Employment Lawyers Association;
National Employment Law Project;
NFIB; National Partnership for Women
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and Families; National Womens Law Center; ROC United; and Worker Justice Center of New York. NFIB stated that this policy, reasonably recognizes situations in which a manager or supervisor provides leadership services with respect to other employees, but also furnishes services to customers on the same basis as those employees, as happens frequently, for example, in the restaurant business. One individual commenter, however, argued that managers and supervisors should not be able to keep the tips that they receive for their direct service, as this would incentivize managers or supervisors to use less staff, so they have to lend a hand.
Commenters also described instances in which tips provided for work performed by a manager or supervisor may be commingled with tips provided to other tipped employees. Werman Salas commented that commingling frequently occurs in two scenarios:
When a manager or supervisor performs tipped work alongside other tipped employees and there is a common tip jar, or when the manager or supervisor assists with tipped work, but is not solely responsible for the service that results in the gratuity being given by the customer. For example a manager or supervisor might run food to a table, but the server is otherwise responsible for the balance of the guest experience. Id.
The Department requested comments on whether it was possible to modify the regulations so that a manager or supervisor could retain tips in commingling scenarios without allowing the manager or supervisor to keep other employees tips in violation of 3m2B. Commenters who responded to this question generally stated that such an approach was not feasible because it will often be impossible to determine the amount of the tip earned by the manager or supervisor. See Werman Salas; NWLC.
For example, NWLC stated that when a customer leaves a single tip for a service experience in which both a manager or supervisor and a non-managerial tipped employee participate, it is not possible to attribute a portion of the tip to the manager or supervisor. Rather than revise the language in 531.52b2 to allow a manager or supervisor to keep commingled tips, these commenters proposed revising the regulation to state the opposite and provide that a manager or supervisor may keep a tip he or she directly receives for service he or she directly provides only if the tip is not commingled with and is segregable from other employees tips. Werman Salas Law Firm; see also NWLC. NRA,
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on the other hand, agreed generally that tips to managers and supervisors should not be commingled with tips provided to tipped employees, but suggested that managers and supervisors could pool tips among themselves.
According to the NRA, no tipped employee shares tips with a supervisor or manager in these scenarios.
Having carefully considered the comments, the Department has decided to slightly modify the statement in 531.52b2 that a manager or supervisor may keep tips that he or she receives directly from customers based on the service that he or she directly provides. In this final rule, the Department amends the regulatory language to clarify that a manager or supervisor may keep tips only for services the manager or supervisor directly and solely provides.
Particularly given comments highlighting the prevalence of tipped work among managers and supervisors in the service industry, it is important that the Departments regulations continue to reflect the fact that section 3m2B does not prohibit managers and supervisors who are tipped employees from keeping tips that are theirs alone. Moreover, as one individual commenter noted, if managers and supervisor cannot keep such tips, it is unclear who would be entitled to them.
However, by clarifying that a manager or supervisor may keep tips only for services the manager or supervisor directly and solely provides, the modified regulatory text will prevent managers and supervisors from keeping tips when it is not possible to attribute the tip solely to the manager or supervisor. The modified regulatory text thus helps to ensure that managers and supervisors do not keep any portion of other employees tips, see 29 U.S.C.
203m2B. With respect to commenters suggestion that the Department specify that such tips must be segregable from or not commingled with other employees tips, the Department believes that the clarified language of 531.52b2 makes clear that a manager or supervisor may keep only those tips that the manager or supervisor receives directly for a service that the manager or supervisor directly and solely provides. Thus, a manager who serves her own tables may keep her own tips, for example. However, when a manager simply runs food to a table for which a server is otherwise responsible, she may not keep any portion of the tip the customer leaves for the server since that tip was not earned solely by the manager or supervisor.

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