In an en banc ruling, the Ninth Circuit Court of Appeals reversed the district courts’ dismissals of various actions under the Fair Labor Standards Act ("FLSA") by former servers and bartenders who alleged that they were not paid appropriate wages for non-tipped work by their respective employers. According to the U.S. Department of Labor ("DOL") dual jobs regulation C.F.R. § 531.56(e) and its interpretation contained in its 1988 Field Operations Handbook, employees are entitled to the full minimum wage for any time spent in a non-tipped occupation. This includes any non-tipped work unrelated to serving and bartending, as well as unplanned tasks related to serving and bartending that exceeds 20 percent of their workweek. The Ninth Circuit reviewed the DOL’s guidance and agreed with the analysis of the Eighth Circuit, ultimately holding that the DOL’s guidance on this issue was owed deference. This ended a split in the Circuit Court of Appeals and reveals a burgeoning shift for federal courts to give the DOL’s guidance deference for this issue.
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