(a) With respect to each tipped employee whose wages are determined pursuant to section 3(m) of the Act, the employer shall maintain and preserve payroll or other records containing all the information and data required in § 516.2(a) and, in addition, the following:
(1) A symbol, letter or other notation placed on the pay records identifying each employee whose wage is determined in part by tips.
(2) Weekly or monthly amount reported by the employee, to the employer, of tips received (this may consist of reports made by the employees to the employer on IRS Form 4070).
(3) Amount by which the wages of each tipped employee have been deemed to be increased by tips as determined by the employer (not in excess of the difference between $2.13 and the applicable minimum wage specified in section 6(a)(1) of the Act). The amount per hour which the employer takes as a tip credit shall be reported to the employee in writing each time it is changed from the amount per hour taken in the preceding week.
(4) Hours worked each workday in any occupation in which the employee does not receive tips, and total daily or weekly straight-time payment made by the employer for such hours.
(5) Hours worked each workday in occupations in which the employee receives tips, and total daily or weekly straight-time earnings for such hours.
(b) With respect to employees who receive tips but for whom a tip credit is not taken under section 3(m)(2)(A), any employer that collects tips received by employees to operate a mandatory tip-pooling or tip-sharing arrangement shall maintain and preserve payroll or other records containing the information and data required in § 516.2(a) and, in addition, the following:
(1) A symbol, letter, or other notation placed on the pay records identifying each employee who receive tips.
(2) Weekly or monthly amount reported by the employee, to the employer, of tips received (this may consist of reports made by the employees to the employer on IRS Form 4070).
[52 FR 24896, July 1, 1987, as amended at 76 FR 18854, Apr. 5, 2011; 85 FR 86788, Dec. 30, 2020]
Notes of Decisions
Lindsay Rafferty v. Denny's, Inc., 13 F.4th 1166 (11th Cir. 2021).
· cites it 9× “§ 203 (m) and 29 C.F.R. § 516.28 (a)(3).” On appeal, Rafferty argues that Count One also included a second theory warranting Denny’s liability for allegedly violating the notice requirements contained in § 203(m): that Denny’s violated the FLSA by not providing updated notice…”
Alec Marsh v. J. Alexander's LLC, 905 F.3d 610 (9th Cir. 2018).
· cites it 4× “2012), and because employers are already required to maintain records of each hour an employee receives tips and each hour she does not, see 29 C.F.R. § 516.28 (a). 24 In short, the DOL’s opinion letters, Guidance, and amicus brief positions have long established that discerning…”
Alec Marsh v. J. Alexander's LLC, 869 F.3d 1108 (9th Cir. 2017).
· cites it 4× “See Dissent at 49 (citing 29 C.F.R. § 516.28 (a)). The proper question is whether the FOH § 30d00(f) is consistent with the regulation it purports to interpret, not whether it bears some similarity to other aspects of the FLSA’s statutory and regulatory scheme.”
Driver v. AppleIllinois, LLC, 890 F. Supp. 2d 1008 (N.D. Ill. 2012).
· cites it 3× “29 C.F.R. § 516.28 (a) The Department of Labor’s 1988 Field Operations Handbook interprets the dual jobs regulation: Reg 531.”
Fast v. Applebee's Int'l, Inc., 638 F.3d 872 (8th Cir. 2011).
“28 (a)(4) & (5) (requiring employers to keep records for its tipped employees of “[hjours worked each workday in any occupation in which the employee does not receive tips, and total daily or weekly straight-time payment made by the employer for such hours,” and “[hjours worked…”
Driver v. AppleIllinois, LLC, 265 F.R.D. 293 (N.D. Ill. 2010).
“29 C.F.R. § 516.28 (a). Plaintiffs here claim that Applelllinois had a practice of using tipped employees in non-tipped occupations without paying them the minimum wage for that time.”
Bingham v. Airport Limousine Serv., 314 F. Supp. 565 (W.D. Ark. 1970).
· cites it 2× “29 C.F.R. § 516.28 , promulgated by the Secretary, provides that an employer shall maintain payroll or other records containing the following information regarding each tipped employee whose wages are determined under Section 3(m) of the Act: “(1) A symbol or letter placed on…”
Nat'l Restaurant Ass'n v. Solis, 870 F. Supp. 2d 42 (D.D.C. 2012).
“29 C.F.R. § 516.28 (a)(3) (2011) (requiring employers to inform employees in writing when the amount per hour that the employer takes as a tip credit changes).”
Davis v. B & S, INC., 38 F. Supp. 2d 707 (N.D. Ind. 1998).
“1995) (employers are required to make the employees aware of the existence of the tip credit or its amount) (citing 29 C.F.R. § 516.28 (a)(3)); Reich v. Chez Robert, Inc.”
Reich v. Cole Enter., Inc., 901 F. Supp. 255 (S.D. Ohio 1993).
“The Defendants violated 29 C.F.R. section 516.28 in that they did not maintain and preserve the following additional records for tipped employees: Amount by which the wages of each tipped employee have been deemed to be increased by tips as determined by the em *260 ployer .”
Garcia v. Palomino, Inc., 738 F. Supp. 2d 1171 (D. Kan. 2010).
“2 (a)(7) and (c)(2), and 29 C.F.R. § 516.28 . 4 Based on this claim, Plaintiffs ask this Court to strike Defendants’ defenses to Plaintiffs’ *1174 claim for unpaid overtime, to rule that Defendants may not present evidence of the days and hours worked by Plaintiffs, to issue a…”
— 29 C.F.R. § 516.28(a) — 1 case
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