The U.S. Dept. of Labor says it will “uniformly” enforce its 2011 final rule explaining that a tip is the sole property of the tipped employee regardless of whether the employer takes a tip credit, and that the employer is prohibited from using an employee's tips, whether or not it has taken a tip credit, except as a credit against its minimum wage obligations to the employee, or in furtherance of a valid tip pool.

The new regulations address ownership of employee tips under the Fair Labor Standards Act and the DOL in particular points out that the enforcement will include states (Hawaii included) covered by the Ninth Circuit, which had taken the position that if the employer was not taking the tip credit against its minimum wage obligations, then the employer could control the distribution of tips, even to normally non-tipped employees.

The new tip credit regulations, which became effective on May 5, 2011, incorporate Wage and Hour's longstanding position that the 1974 amendments to the FLSA established that tips are the property of the employee, and that an employer can use its employees' tips only in the limited ways prescribed by section 3(m) even when the employer has not taken a tip credit against its minimum wage obligations.