The US Department of Labor (DOL) recently issued Administrator signed Opinion Letter FLSA2008-18. Although Opinion Letters only apply to the exact set of facts and circumstances presented in each case, they are a valuable aid in understanding current interpretations of the Fair Labor Standards Act (FLSA).
This Opinion Letter is a response to a request to treat itamae-sushi and teppanyaki chefs as tipped employees and thus allow them to participate in tip pools. Itamae-sushi chefs work in the bar area and prepare sushi that they serve to customers. Teppanyaki chefs prepare meals at customer tables on a teppan table and also serve the meals to the customers. Along with the itamae-sushi and teppanyaki chefs, servers, bussers, bartenders, and counter workers participate in the tip polls, while cooks and dishwashers do not. All participants regularly receive more than $30 per month in tips.
Itamae-sushi and teppanyaki chefs are more akin to counter workers who cook and serve food to customers than to typical chefs. Counter workers are allowed to share in tip pools. Since “any employee engaged in an occupation in which he customarily and regularly receives more than $30 a month in tips” is a tipped employee, itamae-sushi and teppanyaki chefs may both participate in the tip polls and be considered tipped employees.
State laws may provide rules that are more beneficial to the employee and must be followed. Contact Vision Payroll if you have questions about this Opinion Letter.