Restaurant employers received clarity from the U.S. Department of Labor (DOL) in Opinion Letter FLSA-2025-03, issued September 30, 2025. The Wage and Hour Division (WHD) confirmed that “front-of-house” oyster shuckers—those preparing oysters in view of guests and engaging with them—can legally participate in a traditional tip pool with servers for whom the employer takes a tip credit. The opinion is nonbinding guidance, not a legally binding regulation or court decision.
Under the Fair Labor Standards Act (FLSA), employers may pay certain tipped employees a cash wage as low as $2.13 per hour and claim a tip credit toward the federal minimum wage of $7.25 per hour. But when a tip credit is taken, tip pools may only include employees who customarily and regularly receive tips. Employees do not have to receive tips directly from customers; what matters is regular interaction with customers and performing service duties. The DOL now confirms that guest-facing oyster shuckers qualify, grouping them with sommeliers, sushi chefs, and teppanyaki chefs—roles that have long been recognized as tipped occupations.
The opinion also draws a clear line between front-of-house and back-of-house employees. Kitchen-based oyster shuckers, who work out of view and have minimal guest contact, are not tipped employees and cannot be included in a traditional tip pool when a tip credit is taken. Employers should carefully review each position’s actual duties and customer interaction before deciding who shares in pooled tips.
This opinion is fact-specific and issued under the Portal-to-Portal Act, meaning different facts could produce a different result. Employers should remember that managers and supervisors are not entitled to participate in shared tip pools. If you pay the full minimum wage (no tip credit), you may use a broader, “nontraditional” pool—but managers remain excluded. While the specifics of this opinion may not directly apply to your business, it nonetheless offers helpful guidance on shared tip pools.