- Office of Attorney General Maura Healey
- The Attorney General's Fair Labor Division
Boston — Joining a coalition of 17 attorneys general, Massachusetts Attorney General Maura Healey today expressed her opposition to the Trump Administration’s proposal to rescind a rule that allows employees to keep the tips they earn.
The attorneys general today submitted comments to the U.S. Department of Labor (USDOL) regarding its plan to repeal a 2011 rule clarifying that gratuities are the sole property of employees, and that employers cannot retain any portion of an employee’s tips. Under the Trump Administration’s proposed rule change, employers would be allowed to pocket tips earned by employees who are paid the federal minimum wage.
“When customers pay tips, they expect that money to go to workers,” said AG Healey. “This proposed rule change allows employers to keep all the tips for themselves, tricking customers and depriving low-wage workers of the wages they earn.”
According to the Economic Policy Institute, repealing the rule could result in employers taking up to $5.8 billion of workers’ earned tips. USDOL, which is spearheading the rule change, reportedly decided to shelve an economic analysis that highlighted the billions in gratuity earnings that workers could lose.
Under the Fair Labor Standards Act (FLSA), employers are required to pay their employees the federal minimum wage. Employers can meet this requirement either by paying employees the full federal minimum wage – currently $7.25 per hour – or by paying a lower cash wage, no less than $2.13 per hour, and making up the difference with the tips that the employee earns. The latter practice is known as a “tip credit.” The Trump Administration’s proposed rescission of the 2011 rule would allow employers who pay employees $7.25 per hour to claim the employees’ tips for any purpose.
Massachusetts law does not permit employers to share any portion of an employee’s tips, and the proposed change will not legally impact the rights of Massachusetts service employees. However, the rule may cause confusion among employers and employees alike and may result in improper tip retention by employers.
AG Healey’s Fair Labor Division is responsible for enforcing the prevailing wage, minimum wage, payment of wages, overtime, tip pooling, child labor, and Sunday and holiday premium pay laws.
The Division regularly enforces the Massachusetts tip payment statute. Since January 2015, the Division has taken enforcement action against 19 employers for violating the state’s tip payment law. In all, employers were cited more than $700,000 in restitution and penalties. Last year, the Division cited a Cohasset inn for inaccurately reporting tip amounts on payroll records and for failing to pay the correct service rate to at least one employee. In 2016, the AG’s Office cited a Worcester restaurant owner for illegally retaining tips that should have been distributed to the service staff.
Workers who believe that their rights have been violated in their workplace are encouraged to file a complaint at www.mass.gov/ago/fairlabor. For information about the state’s wage and hour laws, workers may call the Office’s Fair Labor Hotline at (617) 727-3465 or go to the Attorney General’s new Workplace Rights website www.mass.gov/ago/fairlabor for materials in multiple languages.
The attorneys general of California, Connecticut, Delaware, Illinois, Iowa, Maine, Maryland, Massachusetts, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington and the District of Columbia sent today’s joint letter.