I was going back through my posts today, and noticed that in July last year (2018) I commented on a law suit filed against the DOL by the Restaurant Law Center for the National Restaurant Association with accusations that the 80/20 rule was a violation of the FLSA. The Restaurant Law Center pointed to a long standing DOL Opinion Letter FLSA2009-23 that was formally withdrawn ‘pending further consideration’ in a follow up DOL Opinion Letter, dated 3/2/2009 that never did have a follow up.
I did not realize that last November 2018 the DOL rescinded the 80/20 rule altogether with FLSA2018-27. As of November 8, 2018, the FLSA2009-23 was reinstated and employers no longer need to calculate tip credit based on the 20% rule.
The DOL issued a FIELD ASSISTANCE BULLETIN NO. 2019-2 this past February (2019) that clarifies dual jobs and related duties under Section 3(m) of the Fair Labor Standards Act (FLSA).