There is good news for restaurant employers struggling with the impacts of a Ninth Circuit decision them from including "back of the house" staff in a mandatory tip pool.  In the Unified Regulatory Agenda published by the Office of Management and Budget last week, the Department of Labor indicated its intent to issue a notice of proposed rulemaking to rescind regulations that prohibit employers from including "back of the house" employees in a mandatory tip pool, in cases where they do not take a tip credit and pay minimum wage to the employees in the tip pool. 

This issue is currently part of an appeal by the National Restaurant Association from a Ninth Circuit Decision, Oregon Restaurant and Lodging Assn v. Perez (9th Cir. 2016).  The decision held that employers violate the Fair Labor Standards Act (FLSA) by implementing any tip pool arrangement that includes "non-customarily tipped" employees, such as cooks, dishwashers, or food runners who have little interaction with customers.  While the Department of Labor has yet to file a brief responding to the National Restaurant Association's Petition for Certiorari filed in January of 2017, the agency's plans to rescind the regulations could eliminate the need for further appeal of this matter.