Summary:. The Ninth Court of Appeals on September 6 in Marsh v J. Alexander LLC, declined homage enter the US - Ministry of Labor ( "DOL") guiding credit within the law Fair Labor Standards ( "FLSA") promoted. The guidelines generally called "80/20 rule" stipulates that employers not a "tip credit" time on task "related" activities ahead production company (eg cleaning roller tables or seats), while these functions are more than 20 percent of the time a weekend spent. Reaches the conclusion that the 80/20 rule is incompatible with the FLSA because the analysis wrong, instead of the tasks of the employee's performance of different jobs, the Ninth Circuit circuit created a division on this issue and -be opened the way for a decision of the Supreme Court of the United - States with national implications.
Background: The FLSA generally requires employers to their employees a minimum wage of 7.25 / hour $ to pay. If an employee "engage [s] in a profession where normally and regularly more than $ 30 a month in tips given", but an employer may pay reduced wages and to maintain the counsel of the employee as a "credit" $ 7.25 request / hour. In practice, the nature of the federal credit can employers pay their employees $ 2.13 Lace / hour (as the remaining $ 5.12 is earned in tips).
FLSA regulations deal with the use of advanced loans for employees who work for the same employer "duplication" section - c. -to- advanced position and a position not so advanced. Generally, an employer can not take a tip credit for the hours of employees able to work not tip. For example, an employee who works both as a warden and the server has to pay the full minimum wage for all hours worked as a warden. However, take a tip credit, the staff tasks simply "related" to work to the end, "a waitress who spent part of their cleaning tables and setting time, toast the bread, an employer, so to wash coffee and sometimes dishes or glasses , "
Although not mentioned in the regulation, Field Operations Manual DOL (last updated in 2016) contains the 80/20 rule, imposed on extended loans additional restrictions. After that directive, an employee must have the minimum total salary for all jobs "connected" paid to finish the job if the job more than 20 percent of employees hours in a week. disagree the lower courts that the 80/20 rule is a permissible interpretation of the analysis of the "duplication" of the FLSA.
Decision: In Marsh, the Ninth Circuit filed as the validity of the 80/20 rule in nine consolidated cases from the waiters and bartenders. The server applicant admitted that he was employed at the end, but claimed that more than 20 percent of their time to happen with the implementation of tasks that "not directly related to production advice related." Goods, for example, the tea brewing coffee ; cut and stacked lemons and limes; Distributors of soft drinks cleaned; is filled with ice; and led other tasks. Although each individual task takes a few minutes every day, it claims that these tasks together represent more than 20 percent of the time. As such, he claimed that his employer, the 80/20 rule with a kind of credit for the time he has violated worked as a server (it has the work of "related" page, including the time).
By refusing to give consideration to the 80/20 rule, held the Ninth Circuit that the management "Regulation is not compatible ... and tried to" de facto a new regulation to create. "Importantly, the court found the development of the study" doubling "of the analysis, whether an employee involved in two separate orders (as specified in the Regulation) focus on the area of" functions "that intertwine an employee working at a job as a matter of fact. (As shown in the direction of the DOL), said the Ninth Circuit, the Administration Regulations "go [ing]" a completely different approach has "(in one minute per minute base peak related by the work of an employee into three different categories and credits tip yield tips or peaks generation unrelated generation) disallowing [ing] according to the type and amount of work. "The court also noted that the management would be wrong to require an employer to pursue spent on individual tasks each day, the time each employee. Although the court did not specify what the test may include "reproduction", rejected the rule 80/20, Field as stated in the operating manual DOL. as such, reversed the Ninth Circuit, the lower court decision, but the plaintiffs allows the possibility to modify their complaints.
Employers Bottom line: 80/20 DOL rule has since its establishment in 1988, Marsh potential impact has been a point of uncertainty for employers significant because it marks the first division for the Federal Circuit in this area. V quickly. Int'l, Inc. Applebee earlier drawn the eighth circuit considered, but substantially similar version of the 80/20 rule and were referred to the Department of Labor address.
Although the decision Marsh, at least temporarily, said the issue of the states in the Ninth Circuit (WA, OR, MT, ID, NV, CA, AZ, HI and AK), remains the uncertainty in other regions. A collision between the circuits finally at hand, there is a greater possibility that the US Supreme Court to take a call and standardize on a national level the question.
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