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Federal Register / Vol. 86, No. 207 / Friday, October 29, 2021 / Rules and Regulations
Retail Salespersons Sales Agents, Financial Services Sales Representatives, Wholesale and Manufacturing, Except Technical and Scientific Products Secretaries and Administrative Assistants, Except Legal, Medical, and Executive Social and Human Service Assistants Statement Clerks Stock Clerks, Sales Floor Subway and Streetcar Operators Taxi Drivers and Chauffeurs Telemarketers Telephone Operators Tellers Tour Guides and Escorts Travel Agents Travel Guides
List of Subjects 29 CFR Part 10
Administrative practice and procedure, Construction industry, Government procurement, Law enforcement, Reporting and recordkeeping requirements, Wages.
29 CFR Part 531
Wages.
PART 10ESTABLISHING A MINIMUM
WAGE FOR CONTRACTORS
1. The authority citation for part 10
continues to read as follows:

Authority: 4 U.S.C. 301; section 4, E.O
13658, 79 FR 9851; Secretary of Labors Order No. 012014 Dec. 19, 2014, 79 FR
77527 Dec. 24, 2014.

2. Amend 10.28 by revising paragraph b2 and adding paragraph b3 to read as follows:

10.28

Tipped employees.

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b
2 Dual jobs. In some situations an employee is employed in dual jobs, as, for example, where a maintenance person in a hotel also works as a server.
In such a situation the employee, if the employee customarily and regularly receives at least $30 a month in tips for the work as a server, is engaged in a tipped occupation only when employed as a server. The employee is employed in two occupations, and no tip credit can be taken for the employees hours of employment in the occupation of maintenance person.
3 Engaged in a tipped occupation.
An employee is engaged in a tipped occupation when the employee performs work that is part of the tipped occupation. An employer may only take a tip credit for work performed by a tipped employee that is part of the employees tipped occupation.
i Work that is part of the tipped occupation. Work that is part of the tipped occupation is:

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A Work that produces tips; and B Work that directly supports the tip-producing work, if the directly supporting work is not performed for a substantial amount of time.
ii Tip-producing work. A Tipproducing work is any work performed by a tipped employee that provides service to customers for which the tipped employee receives tips.
B Examples: The following examples illustrate tip-producing work performed by a tipped employee that provides service to customers for which the tipped employee receives tips. A tipped employees tip-producing work includes all aspects of the service to customers for which the tipped employee receives tips; this list is illustrative and is not exhaustive. A servers tip-producing work includes providing table service, such as taking orders, making recommendations, and serving food and drink. A bartenders tip-producing work includes making and serving drinks, talking to customers at the bar and, if the bar includes food service, serving food to customers. A nail technicians tip-producing work includes performing manicures and pedicures and assisting the patron to select the type of service.
A bussers tip-producing work includes assisting servers with their tipproducing work for customers, such as table service, including filling water glasses, clearing dishes from tables, fetching and delivering items to and from tables, and bussing tables, including changing linens and setting tables. A parking attendants tipproducing work includes parking and retrieving cars and moving cars in order to retrieve a car at the request of customer. A service bartenders tipproducing work includes preparing drinks for table service. A hotel housekeepers tip-producing work includes cleaning hotel rooms. A hotel bellhops tip-producing work includes assisting customers with their luggage.
The tip-producing work of a tipped employee who both prepares and serves food to customers, such as a counterperson, includes preparing and serving food.
iii Directly supporting work. A
Directly supporting work is work performed by a tipped employee in preparation of or to otherwise assist tipproducing customer service work.
B Examples: The following examples illustrate tasks that are directly supporting work when they are performed in preparation of or to otherwise assist tip-producing customer service work and when they do not provide service to customers. This list is illustrative and is not exhaustive: A
servers directly supporting work
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includes dining room prep work, such as refilling salt and pepper shakers and ketchup bottles, rolling silverware, folding napkins, sweeping or vacuuming under tables in the dining area, and setting and bussing tables. A
bussers directly supporting work includes preand post-table service prep work such as folding napkins and rolling silverware, stocking the busser station, and vacuuming the dining room, as well as wiping down soda machines, ice dispensers, food warmers, and other equipment in the service alley. A bartenders directly supporting work includes work such as slicing and pitting fruit for drinks, wiping down the bar or tables in the bar area, cleaning bar glasses, arranging bottles in the bar, fetching liquor and supplies, vacuuming under tables in the bar area, cleaning ice coolers and bar mats, making drink mixes, and filling up dispensers with drink mixes. A nail technicians directly supporting work includes cleaning pedicure baths between customers, cleaning and sterilizing private salon rooms between customers, and cleaning tools and the floor of the salon. A
parking attendants directly supporting work includes cleaning the valet stand and parking area, and moving cars around the parking lot or garage to facilitate the parking of patrons cars. A
service bartenders directly supporting work includes slicing and pitting fruit for drinks, cleaning bar glasses, arranging bottles, and fetching liquor or supplies. A hotel housekeepers directly supporting work includes stocking the housekeeping cart. A hotel bellhops directly supporting work includes rearranging the luggage storage area and maintaining clean lobbies and entrance areas of the hotel.
iv Substantial amount of time. An employer can take a tip credit for the time a tipped employee spends performing work that is not tipproducing, but directly supports tipproducing work, provided that the employee does not perform that work for a substantial amount of time. For the purposes of this section, an employee has performed directly supporting work for a substantial amount of time if:
A The directly supporting work exceeds a 20 percent workweek tolerance, which is calculated by determining 20 percent of the hours in the workweek for which the employer has taken a tip credit. The employer cannot take a tip credit for any time spent on directly supporting work that exceeds the 20 percent tolerance. Time for which an employer does not take a tip credit is excluded in calculating the 20 percent tolerance; or
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