On October 28, 2021, the U.S. Department of Labor (DOL) announced publication of a final “dual jobs” rule, which reverses course from a December 2020 final rule and resurrects the so-called “80/20 Rule” that governs how tipped employees must be paid under the Fair Labor Standards Act (FLSA). When the proposed rule was announced earlier this year, several stakeholders, including Littler’s Workplace Policy Institute (WPI), submitted detailed comments to the DOL explaining why they believed the latest version of the 80/20 Rule was ill-focused, inconsistent with the FLSA, and unworkable in practice. While some of those comments resulted in improvement to the final rule, the DOL elected to discount or disregard some of the key concerns identified.
The final rule becomes effective December 28, 2021, and the Restaurant Law Center and the Texas Restaurant Association have filed a lawsuit (read more here) recently. Read the summary of the final rule and its implications here.