https://www.epi.org/blog/workers-will-lose-more-than-700-million-dollars-annually-under-proposed-dol-rule/
In October, the Trump administration published a proposed rule regarding tips which, if finalized, will cost workers more than $700 million annually. It is yet another example of the Trump administration using the fine print of a proposal to attempt to push through a change that will transfer large amounts of money from workers to their employers. We also find that as employers ask tipped workers to do more non-tipped work as a result of this rule, employment in non-tipped food service occupations will decline by 5.3% and employment in tipped occupations will increase by 12.2%, resulting in 243,000 jobs shifting from being non-tipped to being tipped. Given that back-of-the-house, non-tipped jobs in restaurants are more likely to be held by people of color while tipped occupations are more likely to be held by white workers, this could reduce job opportunities for people of color.
The background: employers are not allowed to pocket workers' tips—tips must remain with workers. But employers can legally "capture" some of workers' tips by paying tipped workers less in base wages than their other workers. For example, the federal minimum wage is $7.25 an hour, but employers can pay tipped workers a "tipped minimum wage" of $2.13 an hour as long as employees' base wage and the tips they receive over the course of a week are the equivalent of at least $7.25 per hour. All but seven states have a sub-minimum wage for tipped workers.
In a system like this, the more non-tipped work that is done by tipped workers earning the sub-minimum wage, the more employers benefit. This is best illustrated with a simple example. Say a restaurant has two workers, one doing tipped work and one doing non-tipped work, who both work 40 hours a week. The tipped worker is paid $2.50 an hour in base wages, but gets $10 an hour in tips on average, for a total of $12.50 an hour in total earnings. The non-tipped worker is paid $7.50 an hour. In this scenario, the restaurant pays their workers a total of ($2.50+$7.50)*40 = $400 per week, and the workers take home a total of ($12.50+$7.50)*40 = $800 (with $400 of that coming from tips).
But suppose the restaurant makes both those workers tipped workers, with each doing half tipped work and half non-tipped work. Then the restaurant pays them both $2.50 an hour, and they will each get $5 an hour in tips on average (since now they each spend half their time on non-tipped work) for a total of $7.50 an hour in total earnings. In this scenario, the restaurant pays out a total of ($2.50+$2.50)*40 = $200 per week, and the workers take home a total of ($7.50 + $7.50)*40 = $600. The restaurant's gain of $200 is the workers' loss of $200, simply by having tipped workers spend time doing non-tipped work.
To limit the amount of tips employers can capture in this way, the Department of Labor has always restricted the amount of time tipped workers can spend doing non-tipped work if the employer is paying the subminimum wage. In particular, the department has said that if an employer pays the subminimum wage, workers can spend at most 20 % of their time doing non-tipped work. This is known as the 80/20 rule: employers can only claim a "tip credit"—i.e., pay tipped workers a base wage less than the regular minimum wage—if tipped staff spend no more than 20 % of their time performing non-tipped functions; at least 80 % of their time must be spent in tip-receiving activities. The protection provided by this rule is critical for tipped worker. For example, in a restaurant, the 80/20 rule prevents employers from expecting servers to spend hours washing dishes at the end of the night, or prepping ingredients for hours before the restaurant opens. Occasionally, a server might play the role of the host, seating guests when a line has formed, or filling salt and pepper shakers when dining service has ended—but such activities cannot take up more than 20 % of their time without employers paying them the full minimum wage, regardless of tips.
The Department of Labor (DOL), under the Trump administration, has proposed to do away with the 80/20 rule. Workers would be left with a toothless protection in which employers would be allowed to take a tip credit "for any amount of time that an employee performs related, non-tipped duties contemporaneously with his or her tipped duties, or for a reasonable time immediately before or after performing the tipped duties" (see page 53957 of the proposed rule).
With no meaningful limit on the amount of time tipped workers may perform non-tipped work, employers could capture more of workers' tips. It is not hard to imagine how employers of tipped workers might exploit this change in the regulation. Consider a restaurant that employs a cleaning service to clean the restaurant each night: vacuuming carpets, dusting, etc. Why continue to pay for such a service, for which the cleaning staff would need to be paid at least the federal minimum wage of $7.25 per hour, when you could simply require servers to spend an extra hour or two performing such work and only pay them the tipped minimum wage of $2.13 per hour? Or, a restaurant that currently employs three dishwashers at a time might decide they can manage the dish load with only one dedicated dishwasher if they hire a couple extra servers and require all servers to wash dishes periodically over the course of their shifts. Employers could pay servers less than the minimum wage for hours of dishwashing so long as they perform some tipped work right before or after washing dishes.
The department recognizes that workers will lose out under this change, stating that "tipped workers might lose tipped income by spending more of their time performing duties where they are not earning tips, while still receiving cash wages of less than minimum wage" (see page 53972 of the proposed rule). Tellingly, DOL did not provide an estimate of the amount that workers will lose—even though it is legally required, as a part of the rulemaking process, to assess all quantifiable costs and benefits "to the fullest extent that these can be usefully estimated" (see Cost-Benefit and Other Analysis Requirements in the Rulemaking Process). The department claims they "lack data to quantify this potential reduction in tips." However, EPI easily produced a reasonable estimate using a methodology that is very much in the spirit of estimates the Department of Labor regularly produces; DOL obviously could have produced an estimate. But DOL couldn't both produce a good faith estimate and maintain the fiction that getting rid of the 80/20 rule is about something other than employers being able to capture more of workers' tips, so they opted to ignore this legally required step in the rulemaking process.
Below we describe the methodology for our estimate. The simplicity and reasonableness of this approach underscores that by not producing an estimate, the administration appears to simply be trying to hide its anti-worker agenda by claiming to not be able to quantify results.
Methodology for estimating tips captured by employers
The remainder of this piece describes the methodology for estimating the total pay transferred from workers to employers as a result of this rule described above. To evaluate how this rule change would affect pay, we use data from the Current Population Survey (CPS), restricted to states with a tip credit (i.e., that allow employers to pay a subminimum wage to tipped workers), to estimate how much employers might shift work from traditionally non-tipped to tipped staff. Doing so would allow them to spread out the total pool of tips received over more people for whom employers can pay less than the minimum wage, thereby reducing employers' wage responsibility. We then estimate the change in total earnings that would occur for food service workers if that shift in employment took place.
The CPS is a household survey that asks workers about their base wages (exclusive of tips) and about their tips earned, if any. One problem with the CPS data, however, is that earnings from tips are combined with both overtime pay and earnings from commissions. Researchers refer to the CPS variable that provides the aggregate weekly value of these three sources of earnings (overtime, tips, and commissions) as "OTTC." In order to isolate tips using this variable, we first restrict the sample to hourly workers in tipped occupations, to help ensure that we are not picking up workers who are likely to earn commissions. For hourly workers in these tipped occupations who work less than or equal to 40 hours in a week, we assume that the entire amount of OTTC earnings is tips. For hourly workers in tipped occupations who work more than 40 hours, we must subtract overtime earnings. We calculate overtime earnings for these workers as 1.5 times their straight-time hourly wage times the number of hours they work beyond 40. For these workers, we assume their tipped earnings are equal to OTTC minus these overtime earnings.
Some workers in tipped occupations do not report their tips in the OTTC variable; however, the CPS also asks workers to report their total weekly earnings inclusive of tips, and their base wage exclusive of tips. For those workers in tipped occupations with no reported value in the OTTC variable, but whose total weekly earnings is greater than the sum of their base wage times the hours they worked, we assume the difference is tips.
In other words, for hourly workers in tipped occupations we calculate tips in two ways:
- For those who report a value for OTTC:
Weekly tips = OTTC for those who work ≤ 40 hours per week, and
Weekly tips = OTTC − [(base wage) × 1.5 × (hours worked − 40)] for those who work > 40 hours per week.
- For those who do not report a value for OTTC:
Weekly tips = Total weekly earnings inclusive of tips – (base wage x hours worker).
In cases where tips can be calculated both ways, we take the larger of the two values.
Standard economic logic dictates that employers will spread out aggregate tips over as many workers they can—thereby reducing their wage obligations and effectively "capturing" tips. They will shift work from non-tipped to tipped workers until the resulting average wage (combined base wage plus tips) of their tipped workers is at or just above the hourly wage these same workers could get in a non-tipped job. For employers of tipped workers to get and keep the workers they need, tipped workers must earn as much as their "outside option," since, all else being equal (i.e., assuming no important difference in nonwage compensation and working conditions), if these workers could earn more in another job, they would quit and go to that job. But for employers to keep these workers, they do not need to earn any more than they could earn in another job (again, assuming all else is equal), since as long as they are earning what they could earn in another job, it would not be worth it to these workers to quit.
To calculate the "outside option wage," we use regression analysis to determine the wage each worker would likely earn in a non-tipped job. We regress hourly wage (including tips) on controls for age, education, gender, race, ethnicity, citizenship, marital status, and state, and use the results of that regression to predict what each tipped worker would earn in a non-tipped job. We set a lower bound on predicted hourly wages at the state minimum wage. We refer to the predicted value as the outside option wage—it's the wage a similar worker in a non-tipped job earns. We assume if a worker currently earns less than or equal to their outside option wage, their earnings cannot be reduced because if their earnings are reduced, they will leave their job and take their outside option. However, if a worker currently earns more than their outside option wage, their earnings can be reduced by the amount the worker earns above the outside option wage, since as long as their earnings are not reduced below their outside option wage, they will have no reason to leave. We also assume that if their base wage is greater than the state minimum wage—i.e. if their employer is not taking the tip credit—their earnings will not be reduced, since the 80/20 rule applies only to tipped workers who are paid a subminimum base wage. We calculate new average tips earned as the aggregate tips of all tipped workers minus the aggregate amount, just described, by which their earnings can be reduced, divided by the total number of tipped workers.
Using this estimate of new average tips earned, we can estimate how much employers might shift the composition of employment by reducing the number of non-tipped workers and adding more tipped ones. We assume that the total amount of tips earned remains the same— it is just spread out over more tipped workers (who are now doing more non-tipped work). In particular, we assume that the new number of tipped workers is the number that, when multiplied by the new average tips earned, is equal to the total aggregate tips before the change. We operationalize this by multiplying the sample weights of tipped workers by total aggregate tips divided by the difference between total aggregate tips and the aggregate amount by which earnings can be reduced. We then assume that the number of tipped workers added is offset one-for-one by a reduction in the number of non-tipped workers who have food service occupations. We operationalize this by multiplying the sample weights of non-tipped workers by one minus the ratio of the increase in tipped workers to the original number of non-tipped workers. We find that employment in non-tipped food service occupations will decline by 5.3% and employment in tipped occupations will increase by 12.1%, resulting in 243,000 jobs shifting from being non-tipped to being tipped as a result of this rule. The work that had been done by those non-tipped workers will now be done by tipped workers, with tipped workers spending less time doing work for which they receive tips.
The loss in pay is calculated as the difference between current aggregate food service tips and new aggregate food service tips using the new employment weights just described for tipped and non-tipped workers and the new average wages for tipped workers. We assume average wages for non-tipped workers do not change. We estimate that there will be a transfer of $705 million from workers to employers if this rule is finalized.
Finally, it should be noted that our estimate of the transfer from workers to employers is likely a vast underestimate for three reasons. First, tips are widely known to be substantially underestimated in CPS data, thus it is highly likely that we are underestimating the amount of tips employers would capture as a result of this rule change. For example, we find that 47.6% of workers in tipped occupations do not report receiving tips. Similarly, using revenue data from the full-service restaurant industry and updating the methodology from Table 1 here to 2018, we find that tips in full-service restaurants are $30.5 billion, which is roughly twice the amount of tips reported in food service in the CPS. This means the amount employers will really capture is likely roughly twice as large as our estimate. Second, we only estimated losses in food service. However, about 26.0 % of tips earned in the economy are not earned in restaurants or food service occupations. Combining these two factors together means what employers will really capture may be 2.5 times as large as our estimate. Third, our estimates assume that getting rid of the 80/20 rule will only have an effect if the employer is already taking a tip credit. This ignores the fact that some employers may be incentivized to start using the tip credit if the 80/20 rule is abolished, knowing that without the rule they will be able to capture more tips. Accounting for this factor would increase our estimate further.
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