The Times They are a Changing: Walsh Is Confirmed and New Tipped Employee NPRMs Go out the Door
When I was young and they packed me off to school
And taught me how not to play the game
I didn't mind if they groomed me for success
Or if they said that I was just a fool
--Wind-Up, by Ian Anderson, Jethro Tull
Marty Walsh was confirmed by the Senate as Secretary of Labor. Yesterday, Secretary Walsh issued the following statement:
As the son of immigrants and a former union laborer, I share their deep commitment to building an economy that works for all. I have been a fighter for the rights of working people throughout my career, and I remain committed to ensuring that everyone – especially those in our most marginalized communities – receives and benefits from full access to economic opportunity and fair treatment in the workplace. I believe we must meet this historic moment and, as the nation’s Secretary of Labor, I pledge to help our economy build back better.
https://www.dol.gov/newsroom/releases/osec/osec20210322
And to emphasize that they mean what they say, the US. Department of Labor (“DOL”) published two notices of proposed rule making for tipped employees pulling back some of prior administrations efforts. The DOL press release describes those NPRMs as follows:
The U.S. Department of Labor today announced two Notices of Proposed Rulemaking related to tipped workers as the effective date approaches for the “Tip Regulations Under the Fair Labor Standards Act” final rule, published in December 2020.
On Feb. 26, 2021, the department issued a rule to delay the effective date of the 2020 final rule until April 30, 2021, to provide additional time to consider issues of law, policy and fact.
After considerable review, the department will allow several portions of the 2020 Tip final rule implementing the 2018 Consolidated Appropriations Act to go into effect, including the following:
· A prohibition on employers, including supervisors and managers, keeping tips received by workers, regardless of whether the employer takes a tip credit. This prohibition establishes significant protections for tipped employees.
· The ability of an employer that does not take a tip credit to include non-tipped workers, such as cooks and dishwashers, in nontraditional tip-sharing agreements and, by doing so, boost their earnings.
The department’s consideration and review of the 2020 Tips final rule led to today’s proposed rules.
The first NPRM proposes to withdraw and re-propose portions of the rule that narrow the circumstances in which the department can assess civil money penalties for violations. The department is also seeking comments on whether to revise the portion of the 2020 Tips final rule that addresses “managers or supervisors” to better understand those who also engage in tipped work.
The second NPRM proposes to extend further the effective date of three portions of the 2020 Tip final rule to Dec. 31, 2021. They are two portions that address the assessment of civil money penalties and the portion of the final rule that addresses the application of the FLSA tip credit to tipped employees who perform both tipped and non-tipped duties (i.e., dual jobs). The additional eight-month extension would provide the department the opportunity to evaluate additional information about the questions of law, policy and fact raised by these portions of the 2020 Tips final rule.