The Department of Labor's interpretation of the dual jobs regulation--29 C.F.R. Sec. 531.56(e)--does not merit controlling deference because it was inconsistent with the language of the regulation and it was an impermissible attempt to create de facto a new regulation. The DOL does not have authority to require employers to engage in time tracking and accounting for minutes spent in diverse tasks before claiming a tip credit. A worker cannot state a viable minimum wage claim under 29 U.S.C. Sec. 206(a) by alleging that discrete "related" tasks or duties, which were performed intermittently over the course of the day and were intermingled with his duties directed at generating tips, comprise a dual job when aggregated together over the course of a workweek. He also cannot state a claim by alleging the performance of "unrelated" duties that were similarly dispersed and generally assigned.
Marsh v. Alexander's LLC - filed Sept. 6, 2017
Cite as 2017 S.O.S. 15-15791
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