FLSA2018-27 — Dual jobs and related duties under section 3(m) * WHD is withdrawing Opinion Letter FLSA2018-27 as of December 28, 2021. This opinion letter is inconsistent with and has been superseded by the Department’s Dual Jobs final rule, published on October 28, 2021. (See FR 2021-23446). FLSA2018-27 rescinded WHD’s 80/20 guidance and replaced it with a new test for when an employer can continue to take a tip credit for an employee that performs tipped and non-tipped work. In December 2020, WHD issued a final rule that, among other changes, would have largely codified the guidance in Opinion Letter FLSA2018-27 into its regulations. However, before the 2020 Tip final rule went into effect, the Department delayed the effective date of the dual jobs portion of the 2020 Tip final rule (See 86 FR 22597). On October 28, 2021, the Department published its Dual Jobs final rule. This final rule, which goes into effect on December 28, 2021, withdraws and modifies the dual jobs portion of the 2020 Tip final rule. The Dual Jobs final rule sets reasonable limits on the amount of time tipped employees can spend in non-tipped activities when the employer receives a tip credit. The rule clarifies that an employer may only take a tip credit for the hours when an employee is doing work that is tip-producing or engaged in tasks that directly support tip producing work, provided the directly supported work is not performed for a substantial amount of time. This withdrawal is an official ruling of the Wage and Hour Division for purposes of the Portal-to-Portal Act, 29 U.S.C. § 259, and Opinion Letter FLSA2018-27 may not be relied upon as a statement of agency policy as of the date of withdrawal, December 28, 2021.

U.S. Department of Labor Wage and Hour Division
Washington, DC 20210
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F
LSA2018-27
November 8, 2018
Dear Name*:
This letter responds to your request that the Wage and Hour Division (“WHD”) reissue Opinion
Letter FLSA2009-23. On January 16, 2009, then-Acting WHD Administrator Alexander J.
Passantino signed the opinion letter as an official statement of WHD policy. On March 2, 2009,
however, WHD withdrew the opinion letter “for further consideration” and stated that it would
“provide a further response in the near future.”
We have further analyzed Opinion Letter FLSA2009-23. From today forward, this letter, which
is designated FLSA2018-27 and reproduces below the verbatim text of Opinion Letter
FLSA2009-23, is an official statement of WHD policy and an official ruling for purposes of the
Portal-to-Portal Act, 29 U.S.C. § 259. Please note, however, that since the letter was originally
issued in 2009, (1) the applicable federal minimum wage has increased to $7.25 per hour, (2) the
website cited in the letter is now available at https://www.onetonline.org/link/summary/35-
3031.00, and (3) then-section 30d00(e) of the Field Operations Handbook is now section
30d00(f), and the language therein was modified.
I thank you for your inquiry.
Bryan L. Jarrett
Acting Administrator
Dear Name*:
This is in response to your request that we clarify our Field Operations Handbook (FOH) section
30d00(e),
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which explains the Wage and Hour regulation at 29 C.F.R. § 531.56(e) interpreting
the definition of a “tipped employee” in section 3(t) of the Fair Labor Standards Act, 29 U.S.C.
§ 203(t). We agree that the current FOH sections addressing the tip credit have resulted in some
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Unless otherwise noted, any statutes, regulations, opinion letters, or other interpretive material cited in this letter
can be found at ww.wagehour.dol.gov.

Disclaimer: This opinion letter was withdrawn on December 28, 2021. This withdrawal
is an official r
uling of the Wage and Hour Division for purposes of the Portal-to-Portal
Act, 29 U.S.C. § 259, and Opinion Letter FLSA2018-27 may not be relied upon as a
statement of agency policy as of the date of withdrawal.

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confusion and inconsistent application and, as a result, may require clarification. It is our intent
that FOH § 30d00(e) be construed in a manner that ensures not only consistent application of the
Act and a level of clarity that will allow employers to determine up front whether their actions
are in compliance with the Act, but also the paramount goal that all affected workers receive the
full protections of the Act.
The tip credit provision in section 3(m) of the FLSA, 29 C.F.R. § 203(m), permits an employer
to pay its tipped employees not less than $2.13 per hour in cash wages and take a “tip credit”
equal to the difference between the cash wages paid and the federal minimum wage, which is
currently $6.55 per hour. The tip credit may not exceed the amount of tips actually received and
under the current minimum wage may not exceed $4.42 per hour ($6.55 − $2.13).
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A “tipped
employee” is defined in FLSA section 3(t) as any employee engaged in an occupation in which
he or she customarily and regularly receives not less than $30 a month in tips (emphasis added).
Recognizing that there are situations in which employees have more than one occupation, some
of which may meet the tip credit requirements and some of which may not, the regulations
provide that in such “dual jobs,” the tip credit may only be applied with respect to the time spent
in the tipped job.
In some situations an employee is employed in a dual job, as for example, where a
maintenance man in a hotel also serves as a waiter. In such a situation the employee, if
he customarily and regularly receives at least $20 a month in tips for his work as a waiter,
is a tipped employee only with respect to his employment as a waiter. He is employed in
two occupations, and no tip credit can be taken for his hours of employment in his
occupation of maintenance man.
29 C.F.R. § 531.56. The regulations further recognize that some occupations require both tip-
generating and non-tip-generating duties, but do not constitute a dual job that necessitates the
allocation of the tip credit to the tipped occupation only.
Such a situation [i.e. one involving a dual job] is distinguishable from that of a waitress
who spends part of her time cleaning and setting tables, toasting bread, making coffee
and occasionally washing dishes or glasses. It is likewise distinguishable from the
counterman who also prepares his own short orders or who, as part of a group of
countermen, takes a turn as a short order cook for the group. Such related duties in an
occupation that is a tipped occupation need not by themselves be directed toward
producing tips.
Id.
The dividing line between “dual job” and “related duties” is not always clear, however. To give
enforcement guidance on this issue, we issued FOH § 30d00(e), which states:

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Section 3(m) also requires that an employer that elects the tip credit (1) inform its tipped employees of the tip
credit provisions in FLSA section 3(m), and (2) that all tips received by such employees be retained by the
employees.

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Reg 531.56(e) permits the taking of the tip credit for time spent in duties related to the
tipped occupation, even though such duties are not by themselves directed toward
producing tips (i.e. maintenance and preparatory or closing activities). For example a
waiter/waitress, who spends some time cleaning and setting table, making coffee, and
occasionally washing dishes or glasses may continue to be engaged in a tipped
occupation even though these duties are not tip producing, provided such duties are
incidental to the regular duties of the server (waiter/waitress) and are generally assigned
to the servers. However, where the facts indicate that specific employees are routinely
assigned to maintenance, or that tipped employees spend a substantial amount of time (in
excess of 20 percent) performing general preparation work or maintenance, no tip credit
may be taken for the time spent in such duties.
Section 30d00(e) attempts to ensure that employers do not evade the minimum wage
requirements of the Act simply by having tipped employees perform a myriad of nontipped work
that would otherwise be done by non-tipped employees. Admittedly, however, it has created
some confusion. For instance, in Fast v. Applebee’s Int’l, Inc., 502 F.Supp.2d 996 (W.D. Mo.
2007), the court construed § 30d00(e) to not only prohibit the taking of a tip credit for duties
unrelated to the tip producing occupation, but also to prohibit the taking of a tip credit for duties
related to the tip producing occupation if they exceed 20 percent of the employee’s working
time. Moreover, the court determined that what constitutes a related and non-related duty is a
jury determination.
In contrast, in Pellon v. Business Representation Int’l, Inc., 528 F.Supp.2d 1306 (S.D. Fla. 2007),
aff’d, 291 Fed. Appx. 310 (11th Cir. 2008), the court rejected the Fast court’s reading of FOH
§ 30d00(e), holding, in part, that the 20 percent limitation does not apply to related duties. The
court further held that under the Fast ruling, “nearly every person employed in a tipped
occupation could claim a cause of action against his employer if the employer did not keep
perpetual surveillance or require them to maintain precise time logs accounting for every minute
of their shifts.” Pellon, at 1314. Such a situation benefits neither employees nor employers.
We do not intend to place a limitation on the amount of duties related to a tip-producing
occupation that may be performed, so long as they are performed contemporaneously with direct
customer-service duties and all other requirements of the Act are met. We also believe that
guidance is necessary for an employer to determine on the front end which duties are related and
unrelated to a tip-producing occupation so that it can take necessary steps to comply with the
Act. Accordingly, we believe that the determination that a particular duty is part of a tipped
occupation should be made based on the following principles:
• Duties listed as core or supplemental for the appropriate tip-producing occupation in the
in the Tasks section of the Details report in the Occupational Information Network
(O*NET) http://online.onetcenter.org or 29 C.F.R. § 531.56(e) shall be considered
directly related to the tip-producing duties of that occupation.
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No limitation shall be

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WHD recognizes that there will be certain unique or newly emerging occupations that qualify as tipped
occupations under the Act, but for which there is no O*NET description. See e.g., Wage and Hour Opinion Letter
FLSA2008-18 (Dec. 19, 2009) (itamae-sushi chefs and teppanyaki chefs). For such tipped occupations for which

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placed on the amount of these duties that may be performed, whether or not they involve
direct customer service, as long as they are performed contemporaneously with the duties
involving direct service to customers or for a reasonable time immediately before or after
performing such direct-service duties.
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• Employers may not take a tip credit for time spent performing any tasks not contained in
the O*NET task list. We note, however, that some of the time spent by a tipped
employee performing tasks that are not listed in O*NET may be subject to the de minimis
rule contained in Wage and Hour’s general FLSA regulations at 29 C.F.R. § 785.47.
These principles supersede our statements in FOH § 30d00(e). A revised FOH statement will be
forthcoming.
This opinion is based exclusively on the facts and circumstances described in your request and is
given based on your representation, express or implied, that you have provided a full and fair
description of all the facts and circumstances that would be pertinent to our consideration of the
question presented. Existence of any other factual or historical background not contained in your
letter might require a conclusion different from the one expressed herein. You have represented
that this opinion is not sought by a party to pending private litigation concerning the issues
addressed herein. You have also represented that this opinion is not sought in connection with
an investigation or litigation between a client or firm and the Wage and Hour Division or the
Department of Labor.
We trust that this letter is responsive to your inquiry.
Sincerely,

Alexander J. Passantino
Acting Administrator
*Note: The actual name(s) was removed to protect privacy in accordance with 5 U.S.C.
§ 552(b)(7).

there is no O*NET description, the duties usually and customarily performed by employees in that specific
occupation shall be considered “related duties” so long as they are consistent with the duties performed in similar
O*NET occupations. For example, in the case of unique occupations such as teppanyaki chefs, the related duties
would be those that are included in the tasks set out in O*NET for counter attendants in the restaurant industry.

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See Wage and Hour Opinion Letter WH-502 (Mar. 28, 1980) (concluding that a waitperson’s time spent
performing related duties (vacuuming) after restaurant was closed was subject to tip credit).